The herculean task of transforming the Judiciary
The month of June is momentous for Dr Willy Munyoki Mutunga in several ways. Not only does he turn 66 on June 16 this year, when the world marks Soweto Day, on June 20, 2012 it will be exactly one year since he was sworn in as the first Chief Justice of the Republic of Kenya – under a new Constitution.
He begins the month of June with the implementation of the Judiciary Transformation Framework, launched on May 31. Dr Mutunga applied for the Chief Justice’s position because he was convinced he could play a significant role in implementing the Constitution, a project he had pushed for in various capacities for over three decades.
As head of the Judiciary and President of the Supreme Court, Chief Justice Mutunga is well aware of the astronomical expectations that Kenyans have put on his shoulders. “It distressed me for a while until I took them (expectations) as challenges that should consistently and continuously energise me,” he said during an interview at his Chambers in the Milimani Law Courts in Nairobi.
He admits he has had many low moments in the past one year but he never has any sleepless nights. “Sleepless nights would kill me! I always sleep like a healthy baby!”
For him, the Constitution remains his constant North. “The great vision for this nation and its implementation in my view is permanent, irreversible and irrevocable. From the start, we realised that the management model had to be right. All reforms in the Judiciary are driven by this realisation.”
Chief Justice Mutunga is proud that his appointment was transparent and involved great public participation. Picked by the new Judicial Service Commission (JSC), which is broadly represented, his nomination was ratified by the two Principals (President Mwai Kibaki and Prime Minister Raila Odinga) before undergoing a successful vetting ahead of parliamentary approval. “Right from the onset, I felt I owed my appointment to my compatriots; and that has given me the courage and the independence needed for the job,” he says.
Managing expectations
As a champion of the reform agenda, Chief Justice Mutunga is managing expectations by running a transparent institution where successes and challenges are not only shared within the institution, but also with the rest of the country.
“I have decided to make it clear to Kenyans that a transformative judiciary will take more than a decade to be realised. I have not promised what I cannot deliver; I have told them of the challenges. I have two blueprints that will guide my objective of building firm and permanent cornerstones and foundations for a transformative judiciary. I have given Kenyans the basis for judging me.”
The Chief Justice is aware that Kenyans are a very impatient lot who fall short of expecting miracles from their leaders. “Kenyans do not seem to appreciate that our Constitution has given us collective leadership in institutions and there is need to judge leaders differently. The country needs a mind shift on how to judge their leaders.”
What kind of leader are you? I prod.
“This is not a fair question! Ask Kenyans, including my colleagues at the Judiciary,” he says.
Transforming an institution like the judiciary is obviously a herculean task that will involve changing its culture. “Very few people seek to understand the judicial culture that we must change. Historically, it was racist and colonialist, making it very difficult for Africans to seek justice in the courts. Courts were rightly seen as institutions of exploitation and oppression of natives of this country. Although this culture was resisted, after independence it was still very entrenched and I believe the Judiciary itself never confronted this culture head on.”
Indeed, remnants of this culture are still evident in the way sections of the Judiciary fought to keep the wig and scarlet robes that Kenyans told the Ghai Commission should be discarded. “There are still judges who want to be addressed as “My Lord”, and the language of prayers, pleadings and the very structure of our court rooms still encourages us to play god! Our colleagues who are not judicial officers still dart away from the corridors as we pass,” he says.
The Chief Justice is very keen on making sure that judges and magistrates are approachable. “All Judicial officers are now addressed as “Your Honour” and we all know we must work to deserve that honour. The courts are no longer the courts of the magistrates and judges, but courts for all Kenyans as decreed by the Constitution,” he says adding that he cannot claim to be the “Chief Justice” if the Judiciary is the home of injustice.
The reform journey
During the first months of his term in office, the Chief Justice was able to very quickly learn what is ailing the Judiciary from his knowledge of what ails the country. “I was able to bring political will and authority to implement recommendations made by the Judiciary since 2005. I knew where the resistance would come from and I decided to seek collective help from colleagues.”
He and his team then started reforms from the margins as a key strategy and are slowly getting to the centre. “We now have in place a well thought out Judiciary Transformation Framework (JTF) validated by all stakeholders and a Strategic Plan for the Judiciary for 2012-2016, covering the period I will be in office. There is, therefore, a clear blueprint on how my tenure in office will be judged.”
An hour before this interview, Chief Justice Mutunga was inspecting a typing pool at the Milimani Law Courts that is aimed at clearing a backlog of proceedings to ensure expeditious disposal of cases and administration of justice.
“There are many people in prison simply because their proceedings have not been typed. As a stop-gap measure, we brought 62 typists from the National Youth Service who will help to clear the backlog.”
Going forward, says the Chief Justice, the plan is to computerise and digitise documents so as to have paperless courts.
“Ultimately, we will move away from a system where people record statements and court records in long-hand. This is something we want to do so that people do not (unnecessarily) stay in jail for a long time. When people want to launch appeals, they find it difficult just because their proceedings have not been typed!” This is just one of the many projects that are part of the reforms in the Judiciary.
Broadly, the JTF is about urgent changes that are required in the Judiciary. First is the expeditious disposal of cases and administration of justice. “Everybody is sick and tired of the backlog,” notes the Chief Justice.
Judiciary Transformation Framework
The framework also addresses the issue of computerisation — electronic justice. It involves ensuring all documents are electronic. “Things like collection of fees and how you retrieve those records. We want to make our courts modern — which is critical for the expeditious disposal of administration of justice.”
The reform has also included small changes like making sure public toilets are accessible to litigants, installing benches for litigants to sit on as they wait, and making available TV monitors in some courts for litigants.
“We have registries that treat Kenyans with the dignity they deserve, magistrates and judges who are constantly changing their judicial attitudes towards court users. We continue addressing these small changes, thanks to the criticism we receive daily from Kenyans.”
On issues of capacity, the Chief Justice is aware that the Judiciary was understaffed and there have been significant progress in recruiting new judges of the High Court and Court of Appeal, magistrates and research assistants for judges.
The Supreme Court is now operational and is expected to be a paperless modern court.
As regards the vetting of judges and magistrates, the Chief Justice believes it will give Kenya a corps of women and men of integrity who understand the role that the Judiciary plays in our economic, social, cultural and political development towards a progressive and democratic Republic. The vetting, he adds, will ensure the Judiciary is a judiciary for all Kenyans. “It will be a Judiciary ‘Wanjiku’ is happy to fund and trust. In the short term, it will slow things down as some cases are delayed, but ultimately, it will be for the best.”
The reforms also include the setting up of the Judiciary Training Institute (JTI), which will be the nerve centre of the new jurisprudence. It will be an Institute to train judges, magistrates, paralegal staff, administrators and security officers working in the Judiciary. “The JTI will be open to the other arms of government to come and talk to the Judiciary. For example, the military might want to come and talk about the war in Somalia and what it is about, piracy, money laundering, etc. The idea is that judges do not decide cases in a vacuum.”
JTI is expected to demystify this notion of independence of Judiciary, which has been taken literally to mean that there is no interaction with other arms of government. The JTI will also come up with general judicial policies like on issues of bail. “You will find that there is no common denominator. Somebody is asked to pay a KSh1 million, another KSh20 million. Someone steals KSh10 million and they are fined KSh50,000. Another steals a chicken and they are fined and given a four-month jail sentence. All these things give us a bad name, and we will streamline these issues.”
Delinking judicial functions
Early this year, the Chief Justice halted court construction projects around the country after noticing the poor workmanship at the Milimani Law Courts. To ensure projects meet quality standards, the Judiciary has de-linked administration from the professional tasks, such as judging.
“We have pre-qualified experts to make sure that our construction projects do not become the Goldenbergs in the Judiciary. Judges and administrators have been asked to limit their roles to their areas of expertise. We have recruited internal professionals who will work with the external experts.”
In the spirit of accountability and transparency, the Judiciary has told the Ministry of Works that there is not a single project they have supervised that the Judiciary is happy with and they want to change that relationship.
“We are undertaking forensic audits on all constructions and we will not spare any judicial officers who have been involved in any of the construction scams in the Judiciary. We intend to give development partners more participation than before when they fund construction, particularly the Word Bank. Our corporate governance model is not one that encourages micro-management, but rather one that decentralises power and authority.”
The Chief Justice says Kenya is on the road to securing the independence of Judiciary; the office of the Judiciary Ombudsperson has made the institution sensitive to criticism from the public.
“Through the complaints we receive on a daily basis, I am convinced that the old Judiciary could not claim to be working for the Executive, Parliament, the corporate sector, the international community or the majority of Kenyans! The old Judiciary was perhaps unhinged from historical, economic, social, cultural and political contexts of the Kenyan society. It was a convent without any consistent prayer.”
The Judiciary will now have a Director of Performance who will address the issues of performance, which is part of the expeditious delivery of justice. Chief Justice Mutunga summarises the one year he has been in office as exciting. “We are challenging a judicial culture that is anti-technology, anti-performance contracting, anti-training. The whole judicial impunity is also reflected in that culture.” Unlike before, he reassures Kenyans that it is possible to change the Judiciary. “There is now political will and authority to change things!”
Chief Justice Mutunga marks ONE YEAR in office
What have been your low moments?
There have been several namely; it has been a slow process for colleagues in the Judiciary to internalise the vision of the constitution; the vetting of judges and magistrates has brought such uncertainty and despondency among colleagues that the reform process has been slowed down considerably. There are many issues that have given the Judiciary a bad name (bail, sentencing, injunctions, backlog, corruption, delayed rulings and judgments, judicial attitude and culture) that are yet to receive collective attention; and there exists resistance from judicial and administrative arms reinforced by other negative tentacles outside the Judiciary.
In a few months, Kenyans will be electing new leaders. What is one characteristics that you believe every leader should posses?
Worship at the foot of the Constitution!
Which people have had impact on you as a leader?
I have been influenced by the ideologies, politics, struggles, and jurisprudence of many world, African, and Kenyan leaders. They have collectively been my teachers on how to build just, equitable and humane systems and societies.
Their successes and failures have equally impacted my outlook and foresight.
What advice would you give someone going into a leadership position for the first time?
Investigate, listen to people who have been through the same fires with some success, and always know it is not about you, but about the team and the institution you intend to reform.
You are very active on social media. What things do people tell you?
Very properly they have criticised the Judiciary, offered great solutions, and praised the few successes we have achieved. They have also focused on the big issues of societal change. I have kept the debate within the perimeters that can benefit my work at the Judiciary.
Has your presence on social media made you a better Chief Justice?
Only time will tell, but I have benefited from the critique of the Judiciary.
How do you want people to remember you?
I have absolutely no expectations one way or the other!
By: CAROLE KIMUTAI
Photo By: EMMANUEL JAMBO
Courtesy: Management Magazine June 2012
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