Chief justice’s mandate and managing public expectations

The nomination and subsequent appointment of Dr Willy Mutunga as the first chief justice under the new constitution has been welcomed with euphoric optimism and great expectations, reminiscent of how Kenyans welcomed the National Rainbow Coalition government (NARC). This is understandable considering the stature of Dr Mutunga, who has been a leading human rights and democracy activist since the late 1970s[1] and is celebrated as one of the fathers of the constitutional reforms movement in Kenya.

As a recent opinion poll indicated,[2] Kenyans overwhelmingly support him towards ensuring transformative change in the judiciary, one that has for years been dogged by corruption, incompetence, a backlog of cases and political interference. This is despite his now famous ear stud and opposition by conservative Christian fundamentalists, who accuse him of being lacking in family values.[3]

CHIEF JUSTICE’S MANDATE

The breakdown of the rule of law in Kenya over the years can only be remedied, in part, through far-reaching reforms, and most Kenyans believe Dr Mutunga is capable of spearheading the anticipated radical reforms or ‘surgery’ of the judiciary. A look at his Facebook wall[4] and Twitter account[5] evidences not only the great public confidence he enjoys, but worryingly also some unrealistic expectations placed on him. Indeed, one would be forgiven if they thought that there is a national belief that he wields a potent magic wand that will quickly transform the judiciary. Kenyans generally expect the chief justice to address the myriad problems that face the judiciary, re-establish the rule of law and deal a deathblow to corruption and impunity in the country.

The expectations of Kenyans on the chief justice should be within the bounds of the justice’s legal mandate, powers and reasonableness. It’s time for the management of public expectations. Runaway unrealistic expectations on him today may soon grow into frustration and a loss of public confidence tomorrow.

The legal mandate and extent of powers of the chief justice are circumscribed by the constitution[6], the Judicial Service Act[7] and the Supreme Court Act[8]. The constitution in chapter ten makes him the head of the judiciary, which should be independent, ensuring justice is done to all irrespective of status, is not delayed, is administered without undue regard to procedural technicalities and promotes and protects the purposes and principles of the constitution. The constitution gives him a period of 10 years to do this as head of judiciary and the judicial service commission (JSC).

The JSC under article 172 is expected to: ‘(1) … promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice and shall—(a) recommend to the President persons for appointment as judges; (b) review and make recommendations on the conditions of service of— (i) judges and judicial officers, other than their remuneration; and (ii) the staff of the Judiciary; (c) appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament; (d) prepare and implement programmes for the continuing education and training of judges and judicial officers; and…(e) advise the national government on improving the efficiency of the administration of justice....’

The Judicial Service Act should help the chief justice to fulfil his constitutional mandate. It gives him power to chair the National Council on the Administration of Justice, tasked with ensuring a co-ordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system. The council is tasked with matters such as ‘formulating policies relating to the administration of justice, implement, monitor, evaluate and review strategies for the administration of justice, facilitate the establishment of court user committees at the county level, and mobilize resources for purposes of the efficient administration of justice’[9]. The act also gives the chief justice administrative powers[10] to suspend, reprimand and give various forms of punishment, as well as removal from office on public interest, of any rogue, incompetent or undisciplined judicial officers.

The Supreme Court Act statutorily anchors the Supreme Court. The chief justice is the court’s president. The court has the jurisdiction to hear matters pertaining to presidential election petitions,[11] and to give advisory opinions to the national government, any state organ or any county government on any matter concerning county government.[12] It also has a special jurisdiction pursuant to the Vetting of Judges and Magistrates Act[13] to within 12 months of the commencement of the Supreme Court Act, either on its own motion or on the application of any person, and review the judgements and decisions of any judge who has been removed or resigns during or prior to the judicial officers’ vetting process, upon meeting the criteria in section 14 thereof. It also has constitutional interpretation and can appellate jurisdictions that should be exercised to offer high quality jurisprudential base for the judiciary. The judiciary is not manned only by the chief justice but also by the chief registrar and presidents of the various levels of the courts.

MANAGING PUBLIC EXPECTATIONS

The import of the above provisions is that Dr Mutunga’s powers and influence only relate to the above functions he has to play. By no means are these powers suggested to be inconsequential. Indeed, if exercised fully and creatively, he should be able to leave a more functionally robust and credible judiciary. But it is also important for Kenyans to be aware of the limits of his office’s power and influence.

For instance, Kenyans should be reminded that constitutionally, Dr Mutunga can only serve for half the term provided for a chief justice. He was appointed at the age of 65[14] and the constitution requires in article 167 (1), that he retires when he turns 70 years old. Thus, he only has five years to fulfil the expectations that Kenyans have of him. Consequently Dr Mutunga, while being expected to do his very best during that period, can only realistically use that time to set up the foundation for a reforming judiciary and justice system. We should not expect him to produce a reformed judiciary and justice system in five years, as the ills and problems that ail the justice sector are deeply entrenched, systemic and will take longer than that to solve. Indeed, he has said as much himself.

Also, he cannot do all this alone. Much of his powers at the judicial service commission, the Supreme Court and the yet to be formed National Council on the Administration of Justice are of chairing those bodies whose membership is broad-based. Some of them may not be as enthusiastic about reforms as he is. The law expects his leadership of these bodies and the judiciary as a whole to be done in a collegial manner. Thus, the successes or failures of these institutions do not wholly depend on Dr Mutunga. It will depend on the collective resolve of all the bodies’ membership to fully discharge their mandate in reforming the justice sector. Kenyans should pressure all members of these entities if they want to have reforms and not to expect one man to do it all. For instance, if the director of public prosecutions fails to prosecute powerful corrupt personalities, there is little that Dr Mutunga can do about such fellows. Matters have to be brought to court, sometimes all the way up to the Supreme Court, for Dr Mutunga to have a legitimate chance to act on the framed issue(s). Kenya’s judicial process is of an adversarial nature and thus Kenyans should not expect Dr Mutunga to act as would a prosecutorial magistrate in a civil law jurisdiction like France.

REFORMING THE JUDICIARY TOGETHER

While Kenyans have legitimate expectations on Dr Mutunga, it is important for them to also recognise their role in reforming the justice sector. Kenyans as litigants, advocates and others operating outside the judiciary should proactively ensure: the timely redressing of human rights violations and legal wrongs; respect and upholding of the rule of law; solve disputes amicably; and avoid corruption or supporting political interference of the judiciary.

The much talked about corruption in the judiciary is often discussed from the demand-side perspective of corruption, where judicial officers and support staff – e.g., in the registries – demand bribes, rent seek and offer judgements for cash. Yet there is also a supply side to the equation, where litigants and advocates offer/approach and or accept the corrupt demands of judicial officers and supporting staff. They too must say no to corruption if they want a corruption-free judiciary. They must uphold the rule of law. They should not expect to be bailed out by Dr Mutunga when caught on the wrong side of the law. They should not expect Dr Mutunga to be in every court room ‘prefecting’ activities therein. They should act as his ‘ears and eyes’ and raise complaints when warranted.

They should also demand from MPs to do their work of legislating solutions to people’s problems and offer stringent oversight on the executive. The courts will not legislate for the country, as that is outside their mandate. If we have bad laws, do not expect Dr Mutunga to ignore them without a constitutional or lawful basis for doing so. Kenyans must also resolve their disputes more amicably, instead of burdening the courts with trivial, vexatious and frivolous applications, often to buy time or frustrate the wheels of justice.

Kenya’s impunity culture cannot be fully resolved by the courts. Kenyans bear the responsibility of electing a political leadership that has a track record against impunity and they must consistently hold that leadership to account. They must be eternally vigilant and proactively protect and promote their rights collectively and as individuals. Moreover, we must collectively begin to interrogate our role in bringing about the kind of change we often demand. It’s time for Kenyans to stop asking what Dr Mutunga can or will do for them, but what they can do to help him in his role for Kenya’s collective good.

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* Katto K. Wambua is an advocate, High Court of Kenya.
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.

NOTES

[1] Mutunga, W. (2011). Personal reflections on movement building. In Abbas, H., & Tingoi, P. (Eds.), The Power Is Ours: Social Movements in Kenya (pp.24-34). Nairobi: Fahamu.
[2] Mathenge, O. (2011, June 4). Poll - 78pc of Kenyans Back CJ, Deputy Nominees. allAfrica news, available at http://allafrica.com/stories/201106040027.html [Accessed on 19/7/2011">.
[3] Ngirachu, J. (2011, June 7). Private lives of CJ, deputy nominees queried. Daily Nation, available at http://www.nation.co.ke/News/politics/-/1064/1176526/-/7spse7/-/index.html [Accessed on 19/7/2011">.
[4] http://www.facebook.com/pages/Official-Dr-Willy-M-Mutunga/139280492815675 [Accessed on 19/7/2011">.
[5] http://twitter.com/#!/WMutunga [Accessed on 19/7/2011">.
[6] Available at http://www.kenyalaw.org/klr/index.php?id=741 [Accessed on 19/7/2011">.
[7] Act no. 1 of 2011, available at http://www.kenyalaw.org/klr/index.php?id=641 [Accessed on 19/7/2011">.
[8] Act no. 7 of 2011, available at http://www.kenyalaw.org/klr/index.php?id=641 [Accessed on 19/7/2011">.
[9] See; section 35 (1) and (2).
[10] See; the whole of the third schedule of the Act, entitled: “provisions relating to the appointment, discipline and removal of judicial officers and staff.”
[11] Article 163(3) (a) of the Constitution.
[12] Article 163(6) of the Constitution.
[13] Act No. 2 of 2011.
[14] Mayabi, L. (2011, June 24). CJ Willy Mutunga joins Twitter. Available at http://www.capitalfm.co.ke/news/Kenyanews/CJ-Willy-Mutunga-joins-Twitter-13346.html [Accessed on 13/7/2011">.