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AT THE SUPREME COURT BUILDINGS ON APRIL 30, 2012

The chairman of the Judges and Magistrates Vetting Board, Mr Sharad Rao, Distinguished members of the Board, among them Justice Georgina Wood of Ghana, Justice Fredrick Chomba of Zambia and Justice Albie Sachs of South Africa,

Ladies and Gentlemen:

Almost one year since the commencement of the Vetting of Judges and Magistrates Act, 2011, I am glad that your board has surmounted numerous challenges to conclude the vetting of justices serving in the Court of Appeal before the promulgation of the Constitution, and to deliver your report.

I congratulate you on your achievement even as I encourage expeditious conclusion of your mandate. As you know, the law requires the vetting of judges of the High Court and magistrates to be concluded in short order. For us in the Judiciary, speed is of the essence. The results of this exercise lay the groundwork upon which we can plan our activities and programmes knowing the finite resources at our disposal.  More importantly, this exercise will infuse in our institution a sense of confidence and constitutional pride of place.

It is for this reason that I appeal to the Vetting Board to carry out its mandate with speed and adroitness without compromising professionalism and fairness. It is imperative that the vetting exercise is completed quickly to remove anxiety from among judicial officers. Prolonging the vetting process can pose a threat to the administration of justice by creating pockets of fatalistic inertia and even corruption.

Expeditious vetting satisfies the aspirations of the constitution, for we see the clean-up of the Judiciary as only the beginning of Kenya’s social transformation. It is important that when the Judiciary is called upon to adjudicate on matters of leadership and integrity, as is likely to happen at a time when the country chooses candidates for executive and legislative positions, the Judiciary shall not be found with a single blot on its character.

The unparalleled exercise your Board has been tasked with is both delicate and difficult, but it is not for purposes of mere ritual or spectacle. It fulfils a requirement of the Constitution as a first step towards realising the national aspiration for a transformed society.

It is an exercise that is unprecedented in the Commonwealth – one that requires a delicate balance of high-level professionalism and deep sensitivity to both the judicial officials whose record your Board continues to examine, as well as the public that has exceedingly high expectations of those who would sit in judgment over its affairs.

We, as the Judiciary, accept the decisions of the Vetting Board with humility and much circumspection – as we must. It is the stock of the pessimist to look at the glass as half empty. We choose to be optimistic in our outlook, and congratulate the majority of the judges of the Court of Appeal whom the Board has found suitable to continue to serve.

Even as we take stock of these decisions, it is imperative that we avoid the temptation to see them through the sharp prism of narrow individualism which, in the first place, put so many of our institutions in trouble in the past.  We must see these decisions from the perspective of the ordinary Kenyan’s objectives in setting up the vetting process.  Ordinary Kenyans demanded a transformed Judiciary that would take seriously the task of winning back public confidence.  This is one of the tools they chose to test the mettle and institutional commitment of the Judiciary to undergo transformation.

Judicial officers now and in the future must be competent, diligent, knowledgeable, organised and able to work with a variety of people. They must not only have excellent written and oral communication skills, but also possess a high integrity threshold in public and personal life; they must not only be impartial and committed to equal justice under the law, but also be compassionate and humble. They cannot be discourteous or uncivil in dealing with others, even when they are under extreme stress.

These are not criteria for recruiting angels; they are requirements for anyone who wants to serve as a judicial officer in Kenya. She or he must be able to maintain grace under pressure. Their office requires one to not only show good judgment, but also possess legal and life experience, as well as a commitment to public and community service that sustains them in their duties.

To those for whom the Board may have come to the conclusion that they were not suited to continue in service, we extend a hand of thanks for your service to the country and hope that you do not lose the lesson along with the opportunity.

My hope is that even as we lose some of our distinguished members to early retirement, this exercise will provide enduring lessons for the rest who occupy positions of public trust in Kenya. As stinging as these decisions are, the country must draw lessons from the experiences that have generated them. The most obvious conclusion must be that actions have consequences.

Today, as we part company with our colleagues who have given illustrious service to the country at periods that were politically difficult and professionally stifling, we must remain alive to the reality that the idea of justice must always be clear, its ends uequivocal and its manifestations apparent to all. Carrying the lesson of this exercise forward, I am certain there will still be opportunities for those leaving the Judiciary today and in the future to serve their country in numerous other capacities.

I have spoken with my four colleagues and will soon meet up with them to discuss issues regarding their retirement.

I assure Kenyans that I will not allow our departing colleagues to be stepped on while they are down. The indignity visited on judges and magistrates in the so-called radical surgery of 2003 will not be repeated: not on my watch. The lesson we must follow is that as Kenyans, notwithstanding our misgivings, those who have served our country deserve to be so recognised and respected. In order to build strong institutions, we must depersonalise them.

For the rest of us who continue to serve, we must be aware that the bar of public service has been raised so high that it will not be possible to merely do the bare minimum to get by.

We stand to promise Kenyans that we are, indeed, committed to the institutional overhaul they demanded, and which we swore to deliver.  Judicial officers must take note that the public is vigilant.

Should the judges affected by the vetting exercise seek a review of the Board’s decision, as is their right to, they will still not be able to serve in the Judiciary until their reviews are disposed of. We urge the Vetting Board to expedite the process of review, where it has been initiated, and advise us accordingly to enable the Judiciary to respond appropriately to emergent staffing gaps.

Only this morning, I met with all the justices of the Court of Appeal to review the implications of the Vetting Board’s decisions. After the suspension of four judges, the Court of Appeal still has 11 judges available for duty, but one is on sabbatical leave and another is on secondment as head of the Judiciary Training Institute. Until the Vetting Board advises us on any reviews with regard to the judges it was unable to find suitable to serve, the Judiciary cannot deploy them or declare their positions vacant.

In the interim, the judges have elected one from among their number as the Acting President of the Court of Appeal in order to expedite the many urgent administrative matters that have surfaced thus far. I congratulate Justice Erastus Githinji on his election, and wish him well in his duties.

Let me now turn to the impact of the Vetting Board’s decisions. Last year, I had directed the Court of Appeal to fast-track and conclude the determination of cases pending before it. Steady progress is being achieved but the decision of the Vetting Board will have an effect on these achievements.

For instance, records of appeal which were holding up the hearing of criminal cases at the Court of Appeal continue to be fast-tracked. By January 27, 2012, the Court of Appeal had received 1,005 records from High Court stations around the country. The balance of 971 records of criminal appeal is expected to be in before the end of the year.

Further, by accepting written submissions rather than waiting for oral arguments, the Court of Appeal reduced the old cases that had been pending since 2004 from 88 to 76. The waiting period for civil applications is expected to be reduced from six months to one week.

There are many gains being realised from the various reform efforts initiated in the Judiciary. Some of these gains will be slowed as the institution adjusts to the realities of the vetting exercise.

The immediate effect of the Vetting Board’s decision is that some 109 Court of Appeal judgments in cases that had been concluded had not been delivered. The four judges who were expected to write these judgments after the conclusion of hearing had not done so at the time of the Vetting Board’s decision, and they cannot write them now.Of these 30 judgments had been signed and are ready for delivery and will be issued in due course.

Some 47 judgments in cases already concluded where only one of the affected judges sat, will still be delivered. The Court of Appeal rules allow that if one judge leaves the Bench, the decision of two judges is still valid.

In total, 77 judgments will be delivered in spite of the decisions of the Vetting Board.

Unfortunately, hearings will have to start afresh in some 32 appeal cases where two of judges on the bench were suspended.

My expectation is that the Acting President of the Court of Appeal shall reconstitute panels to deal with the 234 cases scheduled to be heard at the Court of Appeal in May, 2012. The effect of this is that only 114 cases will be heard in May, representing a 50 per cent scale-down.

Our priority right now is to conclude pending cases and deal expeditiously with emergency matters. I have, therefore, directed the Court of Appeal to prioritise concluding the matters pending before it with regard to the census and the elections. I am happy to inform the country that I have received the assurances of the justices of the Court of Appeal to facilitate smooth operations during this transition period. At the conclusion of the vetting exercise, the Acting President of the Court of Appeal shall facilitate a smooth, free and fair election of a substantive President of the Court, and member of the Judicial Service Commission.

As the vetting exercise moves to the High Court and the magistracy, we are taking the necessary administrative and management measures to mitigate any negative effects that may arise from it.

As high as the price of this exercise may appear, it is important to see it in its proper, wider context. We must remember that the change we are implementing today has come at the costly price of life, limb and liberty. Kenyans have paid the highest consideration for the Constitution. That is why we must not falter in its implementation.

We have to keep rising even when we fall in order to maintain the momentum for the change for which many of our compatriots have paid the ultimate price.

Although the vetting exercise is time-bound and limited to those officers who were serving before the promulgation of the constitution, I am certain that the public will not hesitate to approach the Judicial Service Commission to ensure that our conduct, individually and collectively, is up to par. The public still thirsts for quality, accessible and affordable justice, and our duty is to provide it.

As Chief Justice, I encourage public vigilance without vindictiveness. I would like to tell the Kenyan public that we in the Judiciary welcome and expect this vigilance.

The Judiciary may seem to be carrying the burden of reform on its own, but I hope the lesson extends to other spheres of leadership in public life throughout Kenya.

Thank you.

Dr. Willy Mutunga, D.Jur, SC, E.G.H.,

Chief Justice & President, Supreme Court of Kenya

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