Keynote Speech By The Chief Justice, Hon. Dr. Willy Mutunga, At The Commencement Of ‘the Judicial Marches Week’ Countrywide On August 21, 2012.
August 22, 2012
Fellow citizens, colleagues, friends, ladies and gentlemen:
Today is a day of great joy for Kenya and the Judiciary. It is a moment for us who are privileged to serve in the Judiciary to open up to the public; explain to them how we work; and get feedback from the people on how to improve our services.
The Constitution of Kenya has created a new country. It bids the Judiciary, and the Kenyan society as a whole, to transform. We have embarked on an elaborate programme to transform the Judiciary by making it people-centred and service-oriented. Indeed, this is the first pillar of the Judiciary Transformation Framework, launched a little over two months ago.
The new Judiciary is becoming more open, accessible, modern, efficient and effective.
We are launching the Judicial Marches Week, an event to be held once every year around the country, as part of our transformation programme. Through the Judicial Marches Week, we seek not only to make the Judiciary more accessible to the public, but also to remind ourselves of the constitutional edict that judicial authority comes from the people.
Judiciary staff are marching, proud of the fact that they are in the service of the public, and appreciative of the fact that it is this public that pays our salaries, pays our allowances, and buys our cars. And they do this despite the fact that 50 per cent of the Kenyan people live below the poverty line. We are bonded to serve. Kenyans foot the bill for justice and we have a duty to explain ourselves to them.
The conversation about accountability must begin in earnest. A conversation between one arm of government and the citizenry — a conversation about our processes and procedures; a conversation about the role of the public in upholding the rule of law; a conversation about a Judiciary so confident about itself and its decisions that it does not consider coming to the people as a denigration of its authority but rather as its affirmation.
Marching is an unprecedented action in the customs and traditions of Kenya’s public service. But it symbolises the kind of radical change required of us to make the institution more accessible and responsive to the public. For a long time, holding a public march was associated with protest — and even violence — because the rights to assembly and demonstration were viewed with such official suspicion as to create doubt about their very legitimacy.
The Constitution requires a recreation of public institutions, so that they become responsive to public need, and, continuously accountable in the execution of their mandate. This is part of the mental shift that public institutions and servants need to make as part of Kenya’s new constitutional dispensation.
Custom and tradition in Kenya, and elsewhere, have especially muzzled judges and magistrates, so that courts of law only speak through their judgments.
Yet, numerous times, the ineloquence of the courts has created an artificial silence even when it was self-evident that justice was being undermined and truth was being muted. Rather than bring honour and cultivate respect as intended, this silence and the appearance of aloofness have alienated many people from our courts and other institutions.
Although one can understand the reticence of judges to explain themselves in forums outside the courtroom, accountability through judgments alone is insufficient in an environment where, constitutionally, judicial authority has been determined to derive from the people. Judges in well developed democracies now have to routinely explain their judgments in forums outside the courtrooms — such as public lectures in universities, addresses to professional organisations and even in the media. It would appear that a modern judge is one who is confident to make pronouncements of law in court, and never shy to explain them in the court of public opinion.
Ladies and gentlemen, we live in an age where power must be accountable – including judicial power. So we, as the Judiciary, are marching as part of this accountability. And here is why.
We, as State officers, are assigned the authority we exercise as a public trust. This authority must only be exercised in a manner that is consistent with the purposes and objects of the Constitution. The actions of all State officers must demonstrate respect for the people. One cannot serve the public by offending it. Public service is not an entitlement.
Our actions must promote public confidence in the integrity of the offices we hold. Our decisions must be objective and impartial – meaning that they must be free from the influences of nepotism, tribalism, corruption and other narrow interests. They must bring honour to the nation, and dignity to the office.
Our courts have employed processes that appear remote and mystical, which have not made them approachable or user-friendly. Many Kenyans also believe that the Judiciary is corrupt. This has resulted in bewilderment and alienation, and in some cases, blatant miscarriage of justice.
We are dealing with these problems as part of our transformation, to make the Judiciary a forum of choice for dispute resolution. However, we are also aware that the Constitution requires us to promote alternative dispute resolution mechanisms. But such mechanisms must never contravene the Bill of Rights, be repugnant to justice and morality or be inconsistent with the Constitution or any written law. We have a duty to ensure that when Kenyans choose other forums to pursue justice, they do not subvert the Constitution.
Until now, the authority of the courts has been vested in symbolic wigs and robes. We may understand the appeal of the symbolism, but are more persuaded by the allure of the substance in our judicial practice. We would like to reconnect with reality and earn our authority and the public’s respect through service, rigorous judicial practice and jurisprudence, efficiency in the way we work, and our integrity. No symbolism however attractive, and however old, can substitute for quality service and integrity.
We want to remove the court process from the realm of mysticism. And as we do this, we wish to make them a publicly accessible space where people can come to seek justice, as well as the affirmation of their rights.
Innumerable times, the Judiciary defends and protects the right to be heard, but rarely is this right granted to it. The conversation we are beginning should provide an avenue for judicial officers to tell the public the difficulties they face as they do their jobs. Judges, magistrates and Kadhis do not address public barazas, and hardly ever take part in public debates in the media about their work.
The result has sometimes been the public placing blame on the Judiciary for shortcomings that are not of its own making. For many Kenyans, being arrested and being held in police custody, for instance, is seen in the same light as being sent to jail by a court. We have a lot of explaining to do. So, we would like to start.
We wish to start today by marching and holding discussions with the public on the work we do and get feedback on how to make it better. Judges, magistrates, Kadhis and other judicial officers will this week be in bus parks, marketplaces, schools, colleges, prisons and other public places to start a conversation about how we shall relate with our clients.
In the next couple of months, I shall be joining colleagues and the public in areas long marginalised to be a part of this conversation. No place is too remote for the reach of justice. The Judiciary is for all Kenyans. There are none more favoured and none discriminated against. When we talk about equitable access to justice, we mean that justice will be available to all, regardless of your status.
We are encouraged by the participation in the events of this week of the police, the directorate of public prosecutions, the prisons service and other agencies. The Judiciary will continue to engage the entire justice chain in partnerships that deliver access to justice equitably and expeditiously.
The establishment of the National Council for the Administration of Justice, of which the Chief Justice is the chairperson, presents a great opportunity to formalise collaboration between various actors in the administration of justice.
We are establishing Court Users Committees at the national, county and court station level, which give all the actors in the justice chain – from the prosecutions directorate, the Attorney General, the police to the prisons to civil society organisations – a forum to work together to resolve issues that prevent them from delivering on their mandates. We desire to create a relationship with the public, nurtured by dialogue that seeks to find solutions to the challenges Kenya faces as a society. The Court Users Committees continue to present a great platform for the Judiciary to learn about the changing needs of the society, and to adjust to them accordingly.
If there is still any doubt, let me be clear: Justice is no longer for sale. Ours is a spirit of service and responsiveness. I encourage all Kenyans wherever they may be to make use of the Office of Judiciary Ombudsperson by sending in complaints through the SMS number 5834, through email, email@example.com or by visiting a court station and asking to speak to the ombudsperson. This is the only way to transform this institution into the Judiciary you wish to see in Kenya.
Let me reiterate our main aims in undertaking the Judicial Marches:
- We are holding the Judicial Marches Week to demonstrate the radical shift required by constitution in recognising the judicial authority comes from the people.
- We want to signal to the Kenyan people that the authority of the courts is not to be found in mysticism, but rather in the quality of their decisions.
- We want to encourage the public to use alternative dispute resolution mechanisms, including traditional ones, as long as they do not offend the Constitution.
- As State officers, judiciary staff want to lead the way in living up to the expectations of the Constitution to be accountable to the public by providing information and responding to questions.
- We want to explain to the public that we share the responsibility for the administration and delivery of justice with other partners — such as the police, the directorate of prosecutions and the prisons service – with whom we have a working relationship.
Fellow Kenyans, every citizen has a duty to respect, uphold and defend the Constitution and all its 18 Chapters and 264 Articles. For those who seek to subvert the Constitution, we must remind them that it is our only defence against lawlessness and disorder. Unless we obey the law – of which court orders are a part, we cannot expect others, be they government agencies, private interests or individuals, to be held to that standard. This is what the rule of law is about.
Not all the decisions the courts make will be popular. Power is not granted to do what is popular, but to do what is right. As long as the decisions of the courts remain within the parameters of the Constitution, which Kenyans voted for overwhelmingly, and advance the rule of law, the Judiciary will have done its duty.
Finally, as we approach the General Election, the most complex ever, I reiterate my pledge that the Judiciary will be true to every Article in the Constitution. In return, I call upon all Kenyans to commit to a free, fair and peaceful election by being law-abiding in the exercise of their rights. I appeal to all Kenyans to support the transformation of the Kenyan Judiciary.
Dr Willy Mutunga, D.Jur., S.C., E.G.H.,
Chief Justice/ President of the Supreme Court of Kenya