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THE MANIFESTO OF A MODERN JUDICIARY
A paper presented by Hon. Justice Nancy Baraza, Deputy Chief Justice of the Republic of Kenya and Vice-President of the Supreme Court of Kenya
The Seventh Annual Judges Colloquium
Held on August 15th 2011 At Serena Beach Hotel, Mombasa, Kenya
THE MANIFESTO OF A MODERN JUDICIARY(1)
“Hope is what led a band of colonists to rise up against an empire; what led the greatest of generations to free a continent and heal a nation; what led young women and young men to sit at lunch counters and brave fire hoses and march through Selma and Montgomery for freedom's cause. Hope is what led me here today--with a father from Kenya, a mother from Kansas; and a story that could only happen in the United States of America. Hope is the bedrock of this nation; the belief that our destiny will not be written for us, but by us; by all those men and women who are not content to settle for the world as it is; who have courage to remake the world as it should be.”
-BARACK OBAMA, speech, Jan. 3, 2008
INTRODUCTION
This quote by Barack Obama, the President of the United States, depicts in many ways what I hope to do today, as I share with you my thoughts on a vision for judicial transformation in this country. It is my hope that this paper will mark the beginning of a journey. The journey symbolizes a move from the old legal order to the new socio-legal order as embodied in the new constitutional dispensation. With this paper, I hope to take you on a journey that is full of hopes, dreams and aspirations for a better tomorrow, a better judiciary and a better Kenya. It is my hope that this is a journey that we shall embark on together. Our destiny will not be written for us, but by us.
I would like to acknowledge the initiative of the Judiciary Training Institute in putting the program together and in enabling us to come together at such a critical moment in our country’s history in order to chart out the values, principles AND goals by which we shall be guided.
In August last year, the people of Kenya adopted a new constitution after several years of intense struggle. This new constitution is the most important achievement towards ensuring and safeguarding the rule of law, economic development, social progress and stability in our country. For the first time in our history, judicial power has been vested exclusively in the Judiciary, and our role is to uphold our new constitution and all the other laws of the land that conform to it.
The title of my presentation today is “A manifesto of a modern Judiciary”. I would like to begin by disaggregating the various parts of the title with a view to understanding what it means to have a manifesto of a modern judiciary. When we talk about a manifesto, what do we mean? When we talk about a modern judiciary, what do we mean? I will begin by addressing the first question.
THE MANIFESTO
A manifesto is a “public declaration of principles and intentions.”(2) It is an official declaration that sets out the vision, the mission, the philosophies, the goals and the aspirations of a people. Through manifestos, people who share a common purpose, attempt to chart out the strategies to be employed with a view to realizing the dream.
Historically, manifestos have been deemed to be highly revolutionary political documents, often designed to stimulate public dialog. Many manifestos of the world have made history. For instance the United States Declaration for Independence (3), the Declaration of the Rights of Man and Citizen,(4)the Declaration of Sentiments, (5) the Communist Manifesto,(6)and so on. The demerits of communism notwithstanding, the Communist Manifesto has since been recognized as one of the world’s most influential political manuscripts. This particular manifesto laid out the tenets that were most influential in making the move by some Nations of the world from modern capitalism to modern communism.
So, essentially, what I am doing here is attempting to lay down what could collectively be deemed to be the basic tenets that will facilitate the move from the Judiciary as envisaged in the old constitution to the Judiciary as envisaged in the new constitution.
In modern institutional reform, the transformation vision requires more than just a manifesto. We also need to have a strategic framework that takes into account the values, the intended results, and the strategies on how to reposition the judiciary and engage the citizenry. Indeed, transformation is not an event, it is a journey. It is through the strategic framework that the core tenets for judicial transformation begin to emerge. The strategic framework not only sets out the vision, the mission, core values, goals and strategic objectives, strategies and targets but also sets out an implementation strategy which identifies the requisite resources needed to achieve the set objectives and targets.
MODERNIZATION
What do we mean by modernization? What does it entail in the Kenyan context? Historically, modernization in the Kenyan context entailed moving away from traditional forms of dispute resolution mechanisms in favor of the modern court systems. The modernization project has more often than not signified a colonial attitude that carried with it the colonial “civilizing mission.(7)” The modernization project therefore essentially entailed bringing Africans up to date with the happenings in the “civilized world.”
The project therefore connotes significant bias towards the “African” ways of doing things. The dichotomy that distinguishes between the traditional and the modern is obviously skewed in today’s context given the fact that societies are not static. Our society is dynamic. Cultures, traditions, beliefs and institutions are constantly evolving hence the impracticability of suggesting the possibility of a sudden break from the traditional to the modern.
The best illustration for this lies in the current constitution. The Constitution provides that the sources of law of Kenya shall comprise of the Constitution as the supreme law of the land and also provides for African customary law as a source of law. Is the Constitution in a traditional moment? Or is it in a modern moment? Needless to say it could very well be in a traditional and a modern moment at the very same time.
World over, questions abound regarding the modernization project. During a recent conference on Modernization of Judicial Administration in the Arab States, scholars asked hard questions. (8)They asked for instance, “What is the most appropriate form of legal and judicial reform and transformation initiatives that can be achieved?(9)” With regard to the link between reform and modernization, they asked, “What reform projects are in progress, and which ones should be carried out? To what extent are the judicial system and the administration qualified –financially and in human resources-, for such projects?(10)” They further interrogated the independence of the Judiciary, by asking, “ Do all judicial systems benefit from the governmental budget as the only resource likely to make them a vital sector to development and respect of human rights? Do all judicial systems have institutions for specialized justice and execution justice?(11)”When they challenged themselves to think about the question of case management and disposal, asked, “To what extent does the accumulation of cases influence the normal course of justice, limit its promptness, affect the quality of its product, and reduce its role in securing the social and economic stability and protecting of human rights? Do the judicial systems also provide an alternative way to resolve litigation? In what fields can cooperation be most effective and supportive?(12)” When contemplating the utility of partnerships in the modernization journey, they asked, “What potential partners could, at the technical level, help in the implementation of reform projects?”
From Europe to Australia to Latin America to African states these questions have been raised.(13) These are also questions that a number of the finest law experts and scholars from Arab states, international institutions and organizations, and many other countries gathered to research, study, analyze with a view to providing answers to the deeply rooted societal and legal problems and questions.
What is interesting to note is that the various questions stemming from the issue of modernization of judicial administration in other parts of the world are very much relevant in the Kenyan context today. It is important for us to consider these questions as we visualize our transformed dream judiciary.
When we talk about modernization of the Judiciary in the Kenyan context, we are talking about transforming the Judiciary into one that meets the desires and expectations of Kenyans. We are also seeking to transform the judiciary into one whose values and philosophies follow the spirit and the letter of the constitution. We are talking about having a judiciary that shares the values and philosophies of the society in which we serve.
An accessible, accountable, efficient and fair judiciary is vital for a democratic society founded on the rule of law and equal protection of the law. The primary role of the Judiciary is to administer justice, reinforce checks and balances and uphold the rule of law. In performing these functions, the Judiciary contributes to social order and political stability, which are foundations of socio-economic and political transformation. The new Constitution of Kenya, the political pillar of Vision 2030 and the first Medium Term Plan therefore identify an accessible, accountable, efficient and fair judiciary as an imperative.
HISTORICAL BACKGROUND: SOCIO-POLITICAL CONTEXT
For many years, the Judiciary was considered a “Department” or the “third” arm of government, imputing that the institution was not equal to the executive or the legislature.(14) This subordination of the Judiciary in the supposed “hierarchy” of organs of government not only undermined its development, but also exposed it to several forces, which led to its decline. Jurisprudentially, the subordination of the judiciary went against Montesquieu’s tripartite system and his original concept of the equality of the three arms of government.(15)
Over the years, the Judiciary has been accused of its historical failure to efficiently, effectively and fairly arbitrate over politico-legal disputes. In democracies, the role of the judiciary is not confined only to arbitration of purely legal disputes, but also legal issues for a political nature, such as elections, legality of governmental power, constitutional review and interpretation and enforcement of human rights. In the 1980s and 1990s, the courts of law were accused of interpreting the law in such cases without regard to the political and social realities, as well as the aspirations of the needs of the Kenyan people. Predictably, as the Ouko Report suggests, most court decisions were in favour of the Executive. The result was that there has been a discrepancy between what the law said and what was going on in the background. In other words, the law was not a mirror image of congruence with the social structure and was far removed from the actual lived realities.
In relation to human rights and separation of powers, the Judiciary was perceived for many years to have abdicated its role as custodian of the rule of law and vanguard of fundamental freedoms. Particularly during the single party-era, the courts of law were accused of failing to uphold fundamental rights and freedoms, the principle of separation of powers and rule of law in cases before them, especially where political interests of individual senior government officials or their associates. In a number of cases therefore, the High Court failed to enforce the Bill of Rights, holding that the provisions were “inoperative” due to lack of rules contemplated by the Constitution.
In the area of constitutional reform, it was not so long ago when the Judiciary itself was considered an obstacle to the realization of a new Constitution, when in 2002, a section of Judges sought judicial orders to stop the discussion and adoption of provisions relating to the Judiciary in the Draft Constitution. This was on done on the basis that the Judges would be adversely affected by the proposals. While the Judges’ application was not founded on a policy of the Judiciary, it reinforced public perceptions that the Judiciary was unable to facilitate political transformation through its role as a fair, impartial and effective arbiter in the process of constitution making.(16)
In order to transform the Judiciary into one that shares the values and aspirations of the society which it serves, making the move towards the modern must of necessity take into contemplation the formal, informal, unofficial and official processes that exist in various social contexts so as to enrich all jurisprudential inquiry. Against this backdrop, judicial reform and modernization is paramount for holistic socio-political and legal transformation.
HISTORICAL BACKGROUND: LEGAL CONTEXT
The judicial transformation project takes cognizance of the fact that the journey towards judicial reform and judicial modernization did not begin today. The project began way before the promulgation of the current constitution. It has a long history spanning through our country’s entire existence. From the 1897 Order in Council when the Laws of Kenya were defined and elaborated to the various laws that are promulgated over time to the cases and deliberations that are made regarding both social and legal problems to the various reports (17) that have recommended what should be done with a view to improving Judicial Services and Administration. As was noted during last year’s Judges Colloquium Resolutions, efforts have been made over the last ten years to enhance judicial performance.(18) The Judiciary has been involved in different reform initiatives in the last ten years. The broad objectives of these initiatives can be divided into:
Ensuring accessibility to justice;
Promoting ethical conduct and preventing corruption in the Judiciary;
Promoting human rights and access to justice;
Maintaining timeliness in case disposal; and
Safeguarding the quality of justice.
Enhancing the efficiency, performance and accountability of the judiciary, judicial officers and staff;
Enhancing the independence, operational autonomy, efficiency and effectiveness in the governance and management of the Judiciary;
Improving the administration of the Judiciary; and
To enhance access to information and communication in the Judiciary.
Several initiatives have been undertaken in order to realize this objectives. For instance, the Judiciary has: (19)
Developed strategic plans (2005-2008 and 2009-2013) to ensure efficient and accessible administration of justice and establish a judiciary that sets the highest standards in the delivery of quality justice in Africa.
Launched a website which provides better access to information on the courts and their services. The ICT Committee and the Registrar’s office are working to improve the website content and scale up the use of technology in the administration of justice.
Established the infrastructure to facilitate the deployment of ICT in courts throughout the country. Local Area Networks are in place in all high court stations and Wide Area Networks are under construction.
Embarked on preparing an ICT policy and strategy, which will give a clear roadmap on automation and digitization.
Expanded the physical infrastructure to enhance access to justice including commencing construction of new court buildings all over the country; expanding the use of mobile courts and opening new court stations.
Initiated a judicial internship program.
Carried out with other stakeholders a thorough and comprehensive review of the judiciary generated a report recommending necessary reforms including an implementation framework and initiated implementation of some of the recommendations.
Taking cognizance of the great work already done, part of the transformation vision is to consolidate the recommendations of various Task forces for example: the Justice Ouko Report and we are reviewing the forensic audit undertaken by Justice Kihara Kariuki to develop a Strategic Framework that reflects the achievements of the Judiciary’s progressing transformation.
CONSTITUTIONAL BACKGROUND
Historically, the Judiciary in Kenya, as well as all other institutions of governance, have been founded upon the belief that the law emanates from the sovereign command. Simply put, law as it is, is the sovereign command. The doctrine(s) upon which Kenya’s jurisprudence is founded presupposes a certain understanding about law, what it is and what it is good for.(20) This understanding is what I refer to here as Legal formalism or Leal Positivism, as it is more commonly known.(21) This is the predominant mode of thinking that has dominated most of our jurisprudential inquiry in this country. It is characterized by formalization of law (law as formal rules or doctrines) and for the most part this traditional idea fails to recognize the idealization of law (law as principles and policies).(22)
The formalization of law is represented in the traditional theories of Hart, Kelsen, and Austin among others. As John Austin would put it, “law is commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience.(23)” Bentham like Austin also argued for Law’s positivism and that the real law is entirely separate from morality. It is also based on the belief that the laws should be certain, predictable and objective. Legal Positivism as depicted by Bentham, Austin and Kelsen is based upon the assumption that there exists sharp distinction between law and morals, law and politics, law and society and so on. The Judiciary and the entire legal system has been built upon the belief that this is a truism. (24) This is the reason why we as judges and lawyers insist on the doctrine of precedent, insist on looking to the law in England and the cases that have been decided before with a view to coming up with solutions to our problems.
This is not to say that this is only view of law that exists in our society. What I refer to here as Legal Positivism is what I argue has been the predominant theory that has emasculated all of the rest most of the time, but now the Constitution creates a more conducive environment for more legal theory and interdisciplinary ways of viewing law which will broaden and enrich our jurisprudence, legal development and judicial service delivery.
The new constitution shatters this view of law in so far as it is interpreted to exclude other enriching postulates. It challenges every single tenet and belief that is incalcated and indoctrinated through legal training, education and practice in this country.
The Manifesto of a modern Kenyan Judiciary finds its anchorage in Article 159 of the Constitution of Kenya. The Constitution provides that judicial authority is derived from the people and vests in and shall be exercised by or under this Constitution. The people bestow power upon the Executive, the judiciary and the legislature. These organs exercise their delegated power during their good behavior. There are inbuilt mechanisms in the Constitution to deal with the question of abuse of that power. It is from this premise that that the first transformation vision tenet emerges. The Judiciary under the new constitutional dispensation must of necessity shift from one that views law as emanating from sovereign command to one that embraces the sovereignty of the people as paramount. (25)
The spirit of the people is the bedrock of our nation’s constitution. The making of a modern manifesto for the Judiciary in Kenya must look to the people’s aspirations, dreams and hopes in order to determine the principles by which we as Judges shall be guided. It must also be one that recognizes that the justice system is constituted by various institutions and stakeholders with a common mandate to ensure access to justice.
THE TENETS OF A MODERN KENYAN JUDICIARY
The Manifesto of a Modern Kenyan Judiciary which has been dubbed, “The Judicial Transformation Strategic Framework in the New Constitutional Dispensation and Vision 2030” is premised on the belief that the transition from judiciary under the old legal order to the new legal order is one that essentially entails modernization and transformation of both institutional and normative elements. By INSTITUTIONAL ELEMENTS, I mean all the areas of modernization that include: -(26)
1. TRAINING: The training of judges, magistrates, registrars, their assistants, clerks and other human resources: by raising the level in training institutes, improving the quality of the instructors, adapting the content of training programs to the current changes (i.e., cyberspace law, comparative constitutional law, business law, international commerce law, competition law, consumption law, intellectual and industrial property law, gender and equality laws, international criminal law, etc.), and reexamining the training methods. It is also necessary to increase the number of areas of specialization in order to meet the quick progress and growing complexity of law. Also very importantly, structuring the teaching of ethic and practice codes, encouraging comparative and international law studies, teaching foreign languages, and opening up training institutes both to the national economic and social environment and the international one.
2. ACCESS TO JUSTICE: Facilitating and making access to justice easy by improving and developing the methods of courts: improving the conditions of reception (listening to and directing litigants inside court houses), providing special assistance to increase legal awareness, promoting legal aid plans, simplifying procedures to avoid delayed settlements, increasing effectiveness and promptness in the execution of court decisions, and also finding alternate and flexible means to resolve legal problems.
3. INFORMATION AND COMMUNICATION TECHNOLOGY: Using information and communication technology to develop efficiency, raise productivity, and achieve promptness and transparency. However, this usage of modern technology requires needs legal and organizational supervision, as well as qualification in the various human resources involved in the justice system at all levels.
The NORMATIVE ELEMENTS include all the areas that deal with the way of thinking, the culture, the values, the environment, the mode of thought and the mode of dress. All factors that holistically contribute to the growth of jurisprudence in our country. This elements are based on the recognition that there are things which serve to guide the way the society works and there is need to harmonize our legal and legislative framework to be in harmony with the letter of the spirit of the constitution.
Transforming these elements would then require a review of our value-structures, the way we think, and the way we work. There is need for us to review our code of conduct with a view to outlining our core values as a judiciary and as Kenyans. Even as we are given an opportunity to design new courts, what are our values? What are our priorities? Is it the wig or the robe? What are values? How do we present those values? Should they wear pantsuits? Should we wear robes? How do we reposition the Judiciary in the society?
There are no easy answers to these questions. It is my hope, that as we chart out our vision for our Judiciary, we shall work together to define our core values.
THE TEN TENETS
I would like to suggest that there are ten elements that are requisite conditions for a transition from the judiciary under the old legal order to the new legal order: -
A PEOPLE-CENTERED JUDICIARY: To Transform the Judiciary from a closed judiciary to a people and citizen-centered judiciary.
TRANSFORMATIVE THINKING ABOUT LAW: To Transform the Judiciary from one that was predominantly emasculated by Legal Formalism and its colonial origins to transformative and innovative jurisprudence and legal development that will provide a definitive break from the colonial legal past.
BRINGING LEGAL REALISM: To transform the Judiciary from Legal Formalism to bringing legal realism and other enriching legal postulates to the practice and jurisprudence of our courts.
STAKEHOLDER ENGAGEMENTS AND PARTNERSHIPS: To transform the Judiciary through a sector-wide approach that recognizes that the justice system is constituted by various institutions and stakeholders with a common mandate to ensure access to justice.
TRANSFORMING OUR INFRASTRUCTURE: To transform the physical infrastructure in order to enhance access to justice
INTERDISCIPLINARYAPPROACHES TO UNDERSTANDING SOCIAL PROBLEMS: To enrich our judging and lawmaking processes through interdisciplinary approaches to law. For instance through understanding legal problems through anthropological, sociological and economic lenses.
LEGAL INSTRUMENTALISM: To revolutionize our view of law, ourselves and our world by recognizing that the law should be used as a tool to achieve social purposes and to balance competing societal interests.
SERVICE DELIVERY: To move from viewing the Judiciary through the prism of power to the prism of service delivery.
VALUE-ORIENTED JUDICIARY: To enhance core values that creates cohesiveness and guide stakeholders.
RESULTS-BASED MANAGEMENT: To keep our promise to the Kenyan people to deliver justice to all.
CONTEXT FOR INTERPRETATION OF THE CONSTITUTION AND THE NEW JUDICIAL ROLE
“Judges ought to remember that their office is jus dicere nut just jus dare; to interpret law and not to make law, or give law”(27)
This is an ancient precedent quoted time and time again with regard to the role of judges in law making under the traditional separation of powers doctrine. In light of the questions that abound our legal and political dispensation, is this precedent a truism? These are the kinds of questions that the new constitutional dispensation forces judges to come to terms with. Is the Judiciary a political institution? Or is the existence of the judiciary based on the assumption that there exists a strict separation of law and politics, law and morality and so on.
These are hard questions that we have to grapple with particularly due to the detail contained in our constitution. The Constitution resembles a legal code given the years of intense negotiation that spanned a period of close to fifteen years. As you all know, the new constitution has eighteen chapters, six schedules and 261 articles. The Constitution comes close in terms of length and breadth to the constitution of India, which is the longest written constitution of the world, containing 395 articles, 12 schedules and 94 amendments. The result is that you find that details that are ordinarily left to ordinary legislation, subsidiary legislation or political questions become constitutional issues and questions. For instance, property and land rights are constitutionally entrenched; security sector governance, leadership and integrity provisions, anti-abortion laws, religious courts and laws are also constitutionally entrenched. What is the impact of this on the practice of judging? These are tough questions that we are forced to grapple with.
The Constitution contains great detail, which remains subject to interpretation by the courts. Because of the level of complexity and the hard questions the Constitution pauses, there is need to find new and innovative ways of thinking about how to answer these questions. The people produced this constitution but the challenge of implementation lies in the legal profession in the legal discipline. (28)
For a long time, legal education and training in Kenya has principally focused on English black letter law. The legal discipline continues to operate as a one-dimensional discipline, paying very little or no attention, to the multifaceted intersections between legal and social problems. This new constitution shatters this view of law. The Constitution shakes up all existing laws, institutions and legal frameworks. There are so many laws that need to reviewed, realigned, created, recreated and re-imagined. It follows that legal education and judicial training also needs a face-lift. As we grapple with the question of judicial transformation, we must also think about transformation of our legal education.
One of the greatest challenges is how to reconcile the Judicature Act Cap 8 with the Constitution of Kenya, which essentially sets out the context for constitutional interpretation. The sources of the law of Kenya are contained in section 3 of the Judicature Act and are as follows:
The Constitution of Kenya as set out in Act No. 5 of 1969 and subsequent amendments to the Constitution.
Legislation includes:
Acts of the Parliament of Kenya.
Specific Acts of the Parliament of the United Kingdom, cited in the schedule to the Judicature Act and the Law of Contract Act (Cap. 23)
One Act of the Parliament of India
English Statutes of general application in force in England on 12thAugust, 1897.
Subsidiary Legislation
The substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August 1897.
It should be borne in mind though that the common law, the doctrines of equity and the aforesaid statutes (already referred to in No. 2 above) only apply “so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.”
African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law.
The new constitution on the other hand provides as follows: (29)
Section 2(1) This Constitution is supreme law of the Republic and binds all persons and all state organs at both levels of government.
(2) No person may claim or exercise State authority except as authorized under this Constitution.
(3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.
(4) Any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
This essentially means that the sources of law in Kenya are: -
The Constitution of Kenya
Customary Law
The general rules of international law
Treaties or Conventions ratified by Kenya in conformance with the Ratification of Treaties Act.
In light of this, there is need for us to come up with answers to the following questions: -
What is the place of English common law, or the substance of the common law, as it is more directly known, and the doctrines of equity and substance of common law?
What is the place of the legislation that existed prior to the promulgation of the new constitution vis a vis the new legislation that continues to be enacted with a view to breathing life into the new constitution?
What is the place of the statutes of general application?
What is the place of the repugnancy doctrine in African customary law? How do we reconcile the place of the Bill of Rights in light of the applicability of customary law and its subjection to the repugnancy doctrine?
To what extent are judges going to rely on jurisprudence from other countries without contextualizing it?
What do we mean by general rules of international law? Do we mean customary international law? What is customary international law? Does it exist?
What is the hierarchy of the sources of law in Kenya today?
What is the place of the doctrine of precedence, stare decisis?
What is the place of judicial review in light of the new court structures?
How do we reconcile the “old legal order” with the “new legal order”?
Should judges rely on the numerous constitutional reports that have been produced when determining questions before them?
What is the role of the Judiciary Service Commission in this process of transforming the Judiciary? Is it one of oversight or management?
It would seem to me that the only clear position is that the Constitution of Kenya is the supreme law of the land and any laws in Kenya (past or present), which are in contradiction with the Constitution of Kenya, will be null and void to the extent of their inconsistency. This is however easier said than done. The answers to the above questions would seem to me to offer the context for constitutional interpretation.
THE VISION AND STRATEGIC DIRECTION
The Chief Justice and the Deputy Chief Justice have a shared vision on the strategic direction the judicial transformation initiative must take and have identified the following key elements to realize this vision:
The institutionalization of a value-based judicial system founded upon ethics, integrity accountability and agreed upon operating principles;
Rolling out of an enhanced Code of Conduct;
A comprehensive and integrated holistic strategic framework to guide the translation of the vision into policy, programmes and visible sustainable results and desired impact;
Development of the Long Term Strategic Framework for the transformation of the Judiciary in line with the New Constitution and Vision 2030;
In partnership, with the Constitutional Implementation Commission, develop a framework for implementation of constitutional requirements;
Development of a Medium Term Plan (2012-2017) aligned with the Long Term strategic framework;
Review and harmonization of old and new Judiciary
Institutional and people/staff competencies and capabilities at all levels including national and devolved levels;
Clear institutional arrangements to steer, coordinate and management the programme implementation (e.g. The CJ- Leadership/Management meeting every fortnight, DCJ Implementation Steering Committee, Technical Team comprising of internal and external experts, Court Users Committee etc.)
A well structured coordinated Judiciary with clarity of individual institution responsibilities, authorities and accountability arrangements (governance structure).
Structured and well-coordinated stakeholder engagement at programme design, implementation, results tracking, monitoring, evaluation and reporting for results and accountability.
Innovation, knowledge, management and replication/scale up of smart practice.
Development of leadership and management accountability frameworks and good corporate governance practices for results, continuous learning and performance improvement
Leveraging ICT for enhanced transparency, service delivery and accountability
Integrated information, education and communication programme for effective stakeholder engagement
Robust results tracking, monitoring and evaluation framework.
KEY PRIORITIES
The Chief Justice and I have already underscored our commitment to the realization of an efficient, effective and accessible judicial and legal system. We are aware of the challenges lying ahead, but so are the opportunities presented in reforming and transforming the judiciary.
In this regard, our key priorities will include:
Transforming the case management system to alleviate case backlog and ensure speedy dispensation of justice,
Reforming court administration and management, including through the use of appropriate information and communication technologies
Strengthening performance management, public financial management systems and the conditions of judicial service
Strengthening ethics and integrity through enforcement of codes of conduct,
Enhancing access to justice, including in commercial cases, through infrastructural development, specialized court divisions and 24 hour courts, among others
Transforming governance within the judiciary by ensuring transparency and accountability and most importantly,
Fostering inter-agency coordination mechanisms and other forms of partnership to advance the Judiciary’s effectiveness, efficiency and independence.
STEPS TO BE TAKEN TOWARDS REALIZING THE VISION
FIRSTLY, it is important to begin defining the context for interpretation of the Constitution by reviewing of the Judicature Act in light of the sources of law outlined in the new constitution.
SECONDLY, reviewing the mandate, authority, duties, responsibilities and accountabilities of the Judiciary with a view to enhancing coherence of envisaged legal, policy and programme frameworks for achieving performance expectations and targeted results. The reference documents include:
The Constitution of Kenya
Judiciary Service Act, 2011
Supreme Act, Act 7 of 2011
Judicature Act, CAP 8
Revision of Laws Act, CAP
Appellate Jurisdiction Act, CAP 9
Magistrates Courts Act, CAP 10
Kadhi’s Courts Act, CAP 11
National Council for Law Reporting Act, 11 of 1994
THIRDLY, reviewing old and new generation Judiciary Institutional arrangements, structures and capability to ensure linked up and connected Judiciary fit for purpose. The institutions are:
The Office of the Chief Justice
The Office of the Deputy Chief Justice
The Judicial Service Commission
The Office of the Chief Registrar
Human Resource Management
The Courts
The Supreme Court
The Court of Appeal
The High Court
The Magistrates Court
The Kadhis Court
The National Council on Administration of Justice
Councils
Committees
The Judiciary Training Institute
FOURTHLY, adopt a results-oriented and building block approach, in reviewing and consolidating the recommendations of the various task force reports, on-going strategies and programmes in place to sustain incremental gains in envisaged institutional transformation programme. In addition, develop and implement a proactive multi-prong strategy to meeting high stakeholder performance expectations of the Judiciary and its new leadership team: task force reports and current strategies include:
The Judiciary- Strategic Plan 2009-2012
ICT Policy and Strategic Plan (2010-2012)
Task Force Reports on Judicial Reforms i.e.
Kotut Report on Terms and Conditions of Service (1993)
Justice Kwach Committee on Reform and Administration of the Judiciary (1998)
Justice Ringera Report on Anti-Corruption and Ethics (2003)
Ouko Task Force on Judicial Reforms (2010)
Justice Bosire Task Force on Terms and Conditions of Service of Judiciary.
FOURTHLY, it will be important to review and develop value for money and results tracking strategies in the implementation of approved infrastructure projects, which include:
On-going projects
FY 2011-2012 projects
Digitization of the High Court project
Direct banking (to stop Judiciary financial hemorrhage) draw lessons from KWS experience
Commercial and investment courts
Leveraging ICT for results project
Peer to peer learning with similar institutions- i.e. Parliament
Social accountability networks
FIFTHLY, it is important to review respond to and enhance Judiciary performance management reporting and accountability frameworks and in particular:
Judicial performance reporting trends framework and draw lessons from the following performance reports:
Court of Appeal- 2006-2010
ii. High Court -2006-2010
iii. Magistrate Courts- 2006-2010
iv. Kadhis Courts 2009-2010
SIXTHLY, review and enhance sector-wide partnership and programme/service delivery linkages with a view to strengthening programme effectiveness and service delivery. Existing sector wide frameworks include:
GLJOS- Annual and Final Project Reports (2004-2009)
MTEF Annual Sector Budget Reports (2006-2010)
Survey Reports on the Design of GJLOS- 11 (2011-on going)
GJLOS II
Framework to enhance partnership with Judiciary and sector development partners
Provide institutional capacity development support for the National Council For Administration of Justice
SEVENTHLY, develop and facilitate programme delivery for leadership, management and institutional development for a cohesive strategic direction of the Judiciary transformation in the new constitutional dispensation. Immediate next steps must include: -
Develop and implement integrated performance management and accountability framework for results and related competence-based and results-oriented staff performance appraisal systems, which inculcate values (i.e. national values, respect, professionalism, integrity), operating principles, ethical codes and Court Mark of Excellence;
Design and facilitate implementation of capacity development and training programmes to empower decision makers with transformational leadership for results;
Leadership transformation and capacity development for women;
Define roles, responsibilities and accountability to reinforce institutional capacity to achieve envisaged and targeted results;
Map competencies and legal expertise to all divisions;
Adopt of the rapid results approach- quick wins (i.e. the registry, the courts) every department should identify and carry out quick wins/ rapid results initiatives (RRI);
Build the capacity of demand side (the citizen, public sector, civil society, the media and private sector);
Scale up innovation, knowledge sharing, smart practice and learning, (internal/external) including peer to peer and government to government learning;
Develop and facilitate roll-out of information, education and communication (internal/external) strategies which include a Judiciary out-reach programme (s);
Develop and facilitate rebranding of the Judiciary and in particular the face of the Judiciary i.e. magistrates, judges, the registry etc.;
Develop and facilitate institutional capability for enhanced coordination, results tracking, integrated monitoring, evaluation and reporting mechanisms;
Initiate judicial clerkship programmes; and
Establish front office for the offices of the Chief Justice, the Deputy Chief Justice and the Supreme Court.
MOREOVER, facilitate development and broad validation of the Judiciary strategic direction for a shared vision and cohesive way forward
Review and up-date the 2009-2012 strategic plan
Develop 2012-2017 judiciary strategic plan
GLJOS II strategic plan 2012-2017
FURTHERMORE, it is important to develop and facilitate implementation resource mobilization and absorption capacity to ensure programme sustainability and scale up building:
Sector partnerships and coalitions (e.g. Ministry of Justice, National Cohesion & Constitutional Affairs, Attorney General Office, Public Prosecution Office, Kenya Anti-Corruption Commission, Kenya Law Reform Commission, Prisons, Law Society of Kenya, Kenya School of Law, University of Nairobi- Parklands Campus etc. and all other law schools);
Expertise (institutional, networks and individual experts);
Framework for enhanced collaboration with development partners;
Treasury/budgetary resources;
Other strategic stakeholder policy and programme frameworks and in particular, those that engage the citizen, demand side umbrella organizations e.g. civil society, public sector, the media and private sector; and
Review challenges in donor funding i.e. absorption and timelines/approvals etc.
LASTLY, in order to effectively facilitate implementation of this programme of work the following rapid initiatives will be undertaken:
Development of a one year work plan to be contained in a project document and delivery mechanisms (July 2011-2012);
Performance contracting for all judiciary institutions;
Related work plan based and results oriented staff performance appraisal system; and
Rapid Results Initiatives/Quick Wins
FINALLY In order to make this dream realizable, there is need for sufficient financial and human resources. In this regard, Resource mobilization and sound financial Management will be undertaken through the ongoing process to operationalize the Judiciary Fund and ensure financial independence; building mechanisms for support from development partners and the ongoing reform of financial procedures, accounting systems, revenue collection and deposit systems. Budget planning and control, expenditure and payment systems, internal and external auditing and procurement procedures to align them with the public finance principles elaborated in the constitution.
CONCLUSION
In lieu of the fact that there are immense public expectations with regard to the Judiciary, its role, its duties and responsibilities, the Modern Kenyan Judiciary seeks to do its best in transforming and restoring public confidence in the Judiciary. Let us be reminded of the challenges we face. Looking forward, let us also remember that these challenges provide an opportunity. Once again, let me reiterate our commitment to upholding the values of the New Constitution and nurturing an independent but accountable, efficient and accessible judiciary. We have the privilege of serving this great and beautiful country and I hope that we will all join hands in the journey towards a transformed Judiciary.
Endnotes
.This paper was the product of discussions, deliberations and reflections shared with many esteemed colleagues and friends. I would like to thank the Hon. Chief Justice, Willy Mutunga for sharing in this vision and all honorable judges for their support in the process of making the dream for a transformed Judiciary realizable. I would also like to thank Nkatha Kabira, a doctoral Candidate at Harvard Law School for her comments, contributions, reflections and shared thoughts on the paper, Joyce Nyamweya, the lead consultant on the reform of the Judiciary for her insightful and helpful strategies towards judicial transformation without whom this paper would not have been possible.
2. http://en.wikipedia.org/wiki/Manifesto
3. The United States Declaration of Independence (1776)
4. The Declaration of the Rights of Man and Citizen (1789) during the French Revolution
5. The Declaration of Sentiments (1848)
6. The Communist Manifesto (1848)
7. Ghai and McAuslan, Public Law and Political Change
8."Strategies for Judicial Administration Modernization in the Arab States " organized by the Ministry of Justice of the Kingdom of Morocco, in partnership with UNDP, and with the support of the World Bank, in Marrakech from March 15th to 17th, 2002.
9. Ibid
10. Ibid
11. Ibid
12. Ibid
13. These are some of the issues raised during the conference on "Strategies for Judicial Administration Modernization in the Arab States " organized by the Ministry of Justice of the Kingdom of Morocco, in partnership with UNDP, and with the support of the World Bank, in Marrakech from March 15th to 17th, 2002.
14. Final Report of the Task Force on Judicial Reforms (The Justice Ouko Report)
15. “Barron de Montesquieu, Charles-Louis de Secondat (Stanford Encyclopedia of Philosophy)”.
16. Ibid
17. There are no less than thirteen reports that have been done that abound recommendations on what should be done in the Judiciary. They include:- The United Nations Basic Principles on the Independence of the Judiciary, 1985, The Report of the Committee to Inquire into the Terms and Conditions of Service of the Judiciary (The Kotut Report), The Commonwealth (Latimer House) Principles, 1998; The Report of the Committee on the Administration of Justice (Kwach Report), 1998; The Universal Charter of the Judge, 1999; Report of the Advisory Panel of Eminent Commonwealth Judicial Experts for the Constitution Review, 2002; The Report of the Integrity and Anticorruption Committee of the Judiciary (The Ringera Report); The Draft Constitution of Kenya 2004 (Bomas Draft 2004), Final Report of the Constitution of Kenya Review Commission, 2005; The Proposed New Constitution (Wako Draft), 2005; The Report of the Subcommittee on the Ethics and Governance of the Judiciary (The Onyango Report), 2006; The Report of the Task Force on Terms and Conditions of Service for Judicial Staff (The Bosire Report), 2007; The Consultancy Report on the Synchronized Survey of Pending Cases in Kenyan Courts, 2007; The Report of the Committee on Ethics and Governance of the Judiciary (The Kihara Kariuki Report), 2008; The Kenya National Dialogue and Reconciliation: Agenda Item IV, 2008; The Kenya Vision 2030; The Medium Term Plan of Vision 2030; The Judiciary’s Strategic Plan, 2009-2012; An assessment of the Needs of the Justice System in the Republic of Kenya (IBA-ILAC Report), 2009; Patricia Kameri-Mbote and Migai Akech, The Justice Sector and the Rule of Law in Kenya Report; The Constitution and the Laws of Kenya, 2010; The Constitution of Kenya, 2010)
18. Judges Colloquium Resolutions 2010
19. Judges Colloquium Resolutions 2010
20. Nkatha Kabira, Commissions, A Site of Encounter between Africa’s Legal Thought and British Legal Thought: The Case of Kenya. SJD Dissertation in Progress.
21. This is sometimes referred to as Legal Positivism. Legal positivism and legal formalism have many facets. See for instance N.E. Simmonds, The Nature of Law: The Problems With One Solution, German Law Journal Vol 12 No. 02. H.L.A Hart, The Concept of law (2d ed. 1994), Nigel Simmonds, Law as a Moral Idea 1 2007. See also Thomas Hobbes, Leviathan Chapters 14-15 (1651). John Austin, The Province of Jurisprudence Determined (1832); H.L.A. Hart, Introduction to John Austin, The Province of Jurisprudence Determined (1954); Immanuel Kant, The Metaphysics of Morals, in Practical Philosophy 353, 379 (Mary J. Gregor ed., 1996).
22. Nancy Baraza and Nkatha Kabira, “Transforming the Kenya Law Reform Commission: From Formalism to Realism.” A Concept Paper developed in June 2009
23. http://plato.stanford.edu/entries/austin-john/#3
24. Nkatha Kabira, Commissions, A Site of Encounter between Africa’s Legal Thought and British Legal Thought: The Case of Kenya. SJD Dissertation in Progress.
25. The Constitution provides as follows:
159 (2) In exercising Judicial Authority, the courts and tribunals shall be guided by the following principles: -
Justice shall be done to all, irrespective of status;
Justice shall not be delayed;
Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
Justice shall be administered without undue regard to procedural technicalities; and
The purpose and principles of this Constitution shall be promoted.
159(3) Traditional dispute resolution mechanisms shall not be used in a way that,
Contravenes the Bill of Rights;
Is Repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
Is inconsistent with this Constitution or any written law.
26. "Strategies for Judicial Administration Modernization in the Arab States " organized by the Ministry of Justice of the Kingdom of Morocco, in partnership with UNDP, and with the support of the World Bank, in Marrakech from March 15th to 17th, 2002.
27. www.mv.helsinki.fi/kanvist/E-Texts/Bacon/Essays.txt
28. Nkatha Kabira, “A New Dawn: Reflections on Kenya’s New Socio-Legal Order” A paper presented at Harvard Law School in October 2010.
29. The Constitution of Kenya 2010
27
Cited documents 2
Act 2
| 1. | Supreme Court Act | 409 citations |
| 2. | National Council for Law Reporting Act | 30 citations |