Critical Reforms Taking Root In The Judiciary
August 22, 2011
By Dr Willy Mutunga, S.C., Chief Justice and President of the Supreme Court of Kenya
Thanks to the new Constitution, the cornerstones of a transformative Judiciary are being laid.
Governance structures of the new Judiciary have been decentralised and democratised. Distinct courts, namely, the Supreme Court, the Court of Appeal, High Court, all known as superior courts, are buttressed by magistrates’ courts that are located all over the republic. In the coming years, there will be a High Court in every county.
While the oﬃces of the Chief Justice and the Registrar reﬂected an imperial and monarchical Judiciary, these oﬃces now have to share judicial governance with new oﬃces created under the Constitution. The system of administration in the courts, headed by the Chief Registrar, shall be delinked from judicial functions so that the former serves the latter. This is a critical reform in the quest to deal with the backlog of cases.
Other reforms already undertaken to deal with the issue of the backlog include the computerisation of the Judiciary, the digitisation of its records, declarations by judges and magistrates on pending rulings and judgements. Judicial oﬃcers are visiting prisons to make sure criminal justice becomes a focus of urgent attention. We are making sure that nobody is in prison illegally and that criminal cases and appeals are fast-tracked.
With the restructuring of the oﬃces of the Chief Justice and the Registrar, and the attendant creation of new oﬃces, the question that arises is who will rule the Judiciary? The Judicial Service Commission (JSC) has been expanded to reﬂect representation from key stakeholders, namely, the public, the Law Society of Kenya and the Judiciary itself.
The JSC has its constitutional role spelt out in terms of recruitment and disciplining of judicial oﬃcers. It will have crucial oversight functions over the Judiciary. Internally, the Judiciary will be run by a team comprising the Chief Justice, the Deputy Chief Justice, the President of the Court of Appeal, the Presiding Judge of the High Court (both positions are elective and cannot possibly reﬂect judicial monarchy), the Chief Registrar, the elected representatives of JSC, the magistracy, managers running key departments in the Judiciary, paralegals, the National Council on Law Reporting, and the Judicial Training Institute.
The Deputy Chief Justice will head a critical Strategic and Transformative Committee that has internal and external stakeholders. This committee has begun to undertake key reforms within the governance, ﬁnancial, IT, ethical sectors as well as the implementation of fundamental policy blueprints that have been shelved for years.
The National Council on the Administration of Justice, launched on August 11, 2011, brings together inter-agency concerns in the administration of justice. Stakeholders such as the police, prisons, State Law Oﬃce, the Ministry of Justice, religious and secular civil society, private sector and foreign interests will participate collectively in matters that are fundamental to the administration of justice.
Gone are the days when blame games in the administration of justice persisted. We will be celebrating the ﬁrst anniversary of the promulgation of the new Constitution with not only the reforms undertaken, but also with the recruitment of 28 judges, the Chief Registrar, and the beginning of the vetting of judges and magistrates.
The Supreme Court will be modern, paperless and the home of progressive and robust Kenyan jurisprudence.
This article was also published in The Daily Nation newspaper on August 21, 2011