When retired Chief Justice Willy Mutunga took up the reins at the Judiciary in 2011, he remarked that he found an institution designed to fail.
“So frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic,” he remarked.
And to prepare the courts to deliver on their obligations under the 2010 Constitution, he embarked on a journey of reforms under the Judiciary Transformation Framework.
The Judiciary’s four-year reform blueprint was implemented between 2012 and 2016 based on four critical pillars—people-focused delivery of service; transformative leadership, organisational culture and professional, motivated staff; adequate financial resources and physical infrastructure; and harnessing technology as an enabler for justice.
Some of these informed the legacies of retired CJ Mutunga and ex-CJ David Maraga. The next CJ will definitely have to build on this and take the judicature to the next level.
Judicial reforms
Among the first steps taken by the Judicial Service Commission (JSC) under Mutunga’s chairmanship was to foster a new organisational culture and increase the professional capacity of the human resource. This resulted in increased recruitment of judges of the Court of Appeal, High Court, specialised courts and magistrates’ courts.
In addition, new positions such as legal researchers and law clerks were established and filled. To improve the institutional culture, judges, magistrates and staff were all trained in aspects of the Transformation Framework, which helped clarify responsibilities and increase buy-in for the reforms.
It is also under Mutunga that the Judiciary’s budget was increased. A portion of this financial outlay improved staff salaries, benefits and welfare. On capacity building, judges, judicial officers and staff accessed more training at the Judiciary Training Institute. This was meant to secure a more motivated and professional workforce that could deliver on the constitutional guarantee of access to justice.
CJ Mutunga will also be remembered for his attempts at making the Judiciary more humane and accessible through people-focused initiatives to secure access to justice. Customer-care desks were established in court stations across the country to address queries from the public. The different courts also developed and widely disseminated registry manuals that explained administrative processes to the public.
In addition, to become more accessible, Mutunga changed the court dress code from the customary robes and wigs—often worn during appearances in superior courts—to a simpler robe. However, this was later reversed by his successor.
Enhanced service delivery
Justice Maraga, for his part, took helmed the Judiciary from 2016, building on the work that had been laid by his predecessor. He sustained the Transformation Framework by focusing on enhanced service delivery and institutional accountability.
He embarked on improving access to justice in two ways. Firstly, he focussed on increasing the physical footprint of courts by prioritising construction of more courts to ensure each county has a High Court station. As of October 2020, only five counties were pending. He also operationalised at least 20 new magistrates’ courts, firmly securing physical access to courtrooms.
The second aspect was to entrench alternative forms of dispute resolution through the court-annexed mediation programme and the launch of the alternative justice systems policy on August 27, 2020.
The court-annexed mediation programme was first launched in 2016 in the Family and Commercial & Tax Divisions of the High Court in Nairobi and has since extended to court stations almost countrywide. The impact has been immense by diverting some cases from the mainstream court processes, which, as is widely known, have been plagued by a high case backlog.
The Alternative Justice Systems policy recognises alternative justice as an effective and different mode of justice from the formal systems. It incorporates more creative remedies that promote substantive justice. These two initiatives have proved crucial to enhancing access to justice and ought to be sustained going forward.
Technology adoption
Perhaps, the biggest feather in Maraga’s cap is the strides made in harnessing technology to improve service delivery. As part of the Commercial Court Justice Sector Reforms, processes have been automated. An e-filing system was set up in this division in 2016 and eventually rolled out to other courts in 2020 during the early days of the Covid–19 crisis. This system shows tremendous promise in simplifying filing and service process of court documents.
Away from administrative matters, both Mutunga and Maraga left an indelible mark on the country’s jurisprudence. In dissenting the question of the enforcement of the one-third-gender rule, Mutunga recognised the role of the Supreme Court in developing progressive and indigenous jurisprudence. He urged Parliament to secure substantive equality by ensuring the immediate enactment of legislation that respects women’s political rights.
CJ Maraga, for his part, repeatedly called on the respect for the rule of law and led in the decision that annulled the presidential election of 2017, holding that the IEBC failed in its constitutional duty to hold a verifiable election. In August 2020, he recommended the dissolution of Parliament to President Uhuru Kenyatta, for failure to pass the two-thirds gender law.
Unfortunately, during Maraga’s tenure, there was understaffing of the Judiciary and a declining budget allocation that undermined the ability of the Judiciary to provide services to all Kenyans.
Critical areas for incoming CJ
As the JSC readies to recruit the next CJ and Supreme Court president, the successful applicant will have to swiftly figure out how to address four critical areas that will shape his or her legacy.
First is securing judicial independence. In any constitutional democracy, including ours, the Judiciary checks the exercise of the power of the two other arms of government – Executive and Parliament. This is naturally bound to create a healthy tension as they undertake their constitutional duties, and the CJ would need to implore negotiation and persuasion to ensure the Judiciary is able to deliver on its constitutional promise to administer justice to all.
Second is access to justice. The CJ ought to ensure every Kenyan has increased access to justice, both through the formal and alternative justice dispute resolution mechanisms. This means addressing the hurdles by the e-filing system, rigorous implementation of the alternative justice system policy, ensuring sufficient workforce that is well trained, motivated and functioning. All this will be critical if the CJ is to build on the predecessors’ initiatives.
Thirdly, addressing the two critical hurdles of independence and facilitating access to justice successfully will require resources. The CJ will have to jump this hurdle by adeptly navigating conversations with the Executive and Parliament to ensure the Judiciary does not face further budget cuts.
Fourthly, increased partnership with development partners, civil society organisations and UN agencies is an option that the succeeding CJ cannot and should not ignore if the Judiciary is to supplement the much-needed resources to be a stellar institution.
Jurisprudence
As a legal mind and president of the apex court on constitutional interpretation, the CJ is expected to make progressive and indigenous jurisprudence that fits the Kenyan context.
Immediately after the enactment of the 2010 Constitution, strong jurisprudence was made in the area of socio-economic rights. However, as we have seen in the recent past, there is little or no enforcement of these progressive judgments by the courts.
There is an urgent need to continue with the progress made in this area, particularly with the question of socio-economic rights, where the most marginalised and vulnerable in society have yet to feel the effect of court judgments and benefit from the provisions of Article 43 of the Constitution.