Remarks On The Inaugural Sitting Of The Supreme Court
October 26, 2011
By The Hon. Dr. Willy Mutunga, S.C.Chief Justice of the Republic of KenyaPresident, Supreme Court of Kenya
Thank you to everyone and welcome to the Supreme Court of the Republic of Kenya. The Hon. Minister, the Hon. Attorney General, the Chair of the Law Society of Kenya, Senior Counsel, Counsel, litigants, Court Staff and the general public:
We are gathered here for a moment whose significance should not be lost on us. It is the first sitting of the Supreme Court of this great Republic, and an important step towards further realization of the hopes and ideals of our Constitution. This sitting therefore is progress on the road to a better Kenya of and in itself.
This inaugural session is not the official launch of the Supreme Court. Rather it is a ceremonial event being hosted to symbolize the commencement of the operations of the Supreme Court, which has two matters before it. It is however truly a historic event in our nation’s history. A complete and formal launch of the Court will be held once we complete the construction of that Court and where all the three arms of government will be invited.
Since its being sworn- in, and subsequent assumption of office, the Supreme Court has been as eager as the rest of the Kenyan public to commence operations. It is fitting to mention that the sitting here today was prefaced by the publication of the interim Supreme Court Rules, which will guide the operations of this Court in the execution of its mandate. In this public eagerness we detect an abiding hope and faith that the Supreme Court will not waver or favour in the pursuit of justice. These are aspirations firmly secured in our Constitution and solemnized by our Oath of office.
Further, we also have an opportunity not only for the Judiciary but all of legal professionals to reflect on the functions and role of this Supreme Court. This Court must first be seen as an integral part of our Court system – but it is more. In particular, I think it is opportune at this inaugural sitting of the Supreme Court, for legal professionals specifically to reflect on the way justice is delivered in our country and the reasons for which the people deemed it necessary to firstly create a new court in its apex and, secondly, for the assertion in the Constitution that “Judicial Authority is derived from the people.”
My answer is the obvious one that the people of Kenya realized that the courts had been less than perfect in living up to their responsibilities. Yet, they also understood that ultimately the Judiciary must remain the bastion of justice and the rule of law. We need to understand that the Supreme Court is an additional constitutional device deemed necessary by the framers to protect our Constitution and secure our democracy. As Justices of this Bench, for now and in the future, we have an abiding obligation to build an institution that should and shall become an iconic monument to the rule of law.
Thirdly, going by the responsibilities prescribed by the Constitution to this Court, I as its President, the Deputy President who is currently away on official duty and our colleagues, its associate Justices, are not numb to the expectations and seriousness of the matters that are prescribed in our jurisdiction. We appreciate that these will be issues of grave significance for the country’s social, political and economic concerns. For these historic and important roles, we pledge our intellectual preparation as Judges of the Supreme Court.
In deliberating upon the cases and causes that will come before us, we shall be steadfast to the responsibility that Judges are servants of the law and not the converse. In accordance with our oath of office, we will treat every case with objectivity and undertake fair analysis of the legal arguments. We will be open to the considered views of each other on the bench and render our judgments and decisions based upon the evidence subject to the rule of law, without fear of any authority or favor of anyone or anything, devoid of ill-will towards any persons or affection towards any cause. This Court is ready to perform its role in providing leadership in legal interpretation; development of solid jurisprudence in view of our new Constitution; and stabilize precedents.
To our colleagues at the Bar, we urge you to apply your knowledge and the processes of this Court and the Judiciary generally to advance substantive justice and the rule of law. We look forward to hearing from you refined presentations, well-researched arguments and, not least, fair actions in dealing with this Court and with all parties before this and all the Courts of Kenya. It is through thorough research and precise legal arguments that the Court will derive its ability to articulate and settle legal questions clearly. Good judicial decisions are watered by good and incisive arguments.
To the other coordinate arms of government, my message is that the Supreme Court will observe and honor the doctrine of separation of powers even as it secures, protects and proclaims its independence. We shall not use our independence or interpret the doctrine of separation of powers in a manner that transgresses the domain of the Executive or the Legislature. But neither shall the Supreme Court flinch nor blink in defending its independence and in executing its judicial mandate with respect to inter-branch relations as proclaimed in the Constitution.
To the litigants and citizens of the country, we assure you that this Court understands that as final arbiter, the impact of its decisions will extend beyond the parties in any case, and will shape society and affect daily lives. This is not an obligation that we shall approach lightly. It is not lost on this Supreme Court that justice is the tolerable accommodation of conflicting interests in society; we can only assure you that this is a people’s Court and that the public can count on the fidelity of its decisions to justice and the rule of law. All persons, authorities and figures must undertake to live by the rule of law and therefore abide by the decisions and judgments of this Court. It is only when people and authorities respect the law as and when enacted; and respect court decisions as and when delivered, that the rule of law thrives. It is indeed my hope that the public will explore alternative dispute resolution mechanisms so that all matters are not litigated through an adversarial system. There is no doubt that for this to happen, these alternative sites of justice must build and earn the public respect and confidence.
But the realization of the rule of law must be assisted. It is for this reason that we shall have an open Supreme Court where members of the public will be invited to be witnesses in the manner in which the wheels of justice turn. The design of the Supreme Court will be one that fortifies the doctrine of equality before the law; one that eschews artificial hierarchy so that the juices of justice can flow freely. We want a Supreme Court that is easy on its disposition and mien but rigorous in its jurisprudence – a Court that earns respect not from its intimidating rituals and architectural poise but rather from the solidity and quality of its judgments.
To enrich its jurisprudence, the Supreme Court must develop a natural affinity to academia. We will evolve a symbiotic relationship between the Court and the academy so that judgments of the Court are cited in lecture theatres and writings of eminent jurists inform Court judgments. The Supreme Court is going to develop a robust Clerkship system which will form an important limb between the Court and the young academy. There is no doubt that for the development of the law to occur the classroom should find space in the courtroom and vice versa.
Hon. Dr. Willy Mutunga, S.C.
Chief Justice, Republic of Kenya
President, Supreme Court of Kenya
26th October 2011