Judicial reforms: The difficulties ahead

As mandated by the new Constitution, Chief Justice Evan Gicheru retired from the Judiciary at the end of February 2010. Eventually the country will get a new Chief Justice, and may already have done so if the process for appointing his replacement had not been so woefully mismanaged. So what does the road ahead for the Kenyan judiciary look like and what can be expected in the coming days?

As evidenced by the failed attempts by the President to impose on the country his choice; the political level is greatly interested in, and would like to control, the choice of the next Chief Justice. President Kibaki was prepared to ignore not only public opinion but also virtually all the independent advisors in his government, just so that his choice could prevail. The lesson is that a new Constitution does not necessarily translate into a supportive political culture for the reforms that have to be undertaken in the country. On the road ahead, political support for judicial reforms, though necessary, is not guaranteed. The political level may even sabotage reforms in the judiciary if these threaten its own interests.

The parameters for the choice of the next Chief Justice are just now emerging: the Judicial Service Commission announced that it will soon invite applications from interested persons for appointment to this office. Suitably qualified people from the Commonwealth would be welcome to apply. One level of the difference between the president and the prime minister, which contributed to the failed attempt to appoint a Chief Justice, was the divergence of opinion as to the nationality of the new Chief Justice. While the president preferred a local candidate, the prime minister wanted the Chief Justice to come from the Commonwealth. Kenyans have many views on just this issue. Those who oppose a foreign appointment do so on the ground of nationalism, that there are qualified Kenyans for the position and, therefore, no need exists for a foreign appointment. Those who favour a foreigner argue that Kenyans suspect their compatriots based on ethnicity. In this regard, it is argued that a foreign Chief Justice would contribute to healing the wounds of the post election violence.

Even among those who agree on a local appointee there is another dimension of the debate and this is whether the candidate should be picked from the Judiciary or outside of it. Bernard Chunga was the Director of Public Prosecutions when, in 1999, he was appointed Chief Justice by President Moi. This choice greatly surprised both the country and the Judiciary. During his short tenure as Chief Justice, Justice Chunga, who had other debilitating weaknesses, laboured under the burden of rejection from members of the senior judiciary, who regarded him as an outsider, and never accepted him. If the next Chief Justice is selected from outside the Judiciary, he must be so outstanding that the Judiciary will have no choice but to accept him.

The coming days carry anxiety for the serving Judiciary. As required by the new constitution, all serving judges and magistrates must be vetted to determine their suitability to continue serving in their positions. Although the enabling legislation has now been enacted, it is not clear yet what the actual experiences in relation to the vetting will be. Further, while the vetting comes with the great promise of a fresh beginning, if it is not handled well, and if, as a result, it lacks or loses credibility; a real opportunity to reform the judiciary will be missed. Worse, if the vetting process degenerates into a farce, like did the ‘radical surgery’ in its later stages, this may provide opportunity for critics to mock the whole judicial reform project, and the judiciary may suffer further damage as a result.

As the experience in the radical surgery demonstrated, political support for the vetting process will be crucial, as will be the support of the Chief Justice. While at the beginning the ‘radical surgery’ enjoyed the personal support of former Chief Justice Gicheru, from which it visibly benefited, this support eventually dried up, slowly deflating the process. The resulting delays ended up embarrassing the judiciary, and those judges whose cases had been referred to the tribunals. With this experience, the choice of the next Chief Justice must, surely, be based on his/her stated willingness to provide full support to the vetting process.

Another source of uncertainty must emanate from the expected establishment of a Supreme Court as the apex court. The judges in the Court of Appeal, for long accustomed to being the highest court, must now accept the authority of a higher court than the one in which they sit. In the coming days, there are many difficult decisions that must be made with regard to the Supreme Court. One set of decisions is with regard to the choice of people to appoint to this new court. Should the judges of the Court of Appeal, as the most senior judges, be privileged when considering personnel for the new court? If the current senior judges are not considered for appointment to this court, will they be prepared to respect and abide by the decisions of a new set of judges that will be appointed over them as the highest members of the Judiciary? Does the country have enough qualified people from among whom judges to this court will be appointed? Is there a case for bringing in judges from the Commonwealth to form part of this court and, if so, how many should these be?

Until the radical surgery the Court of Appeal had a well established tradition of bullying lawyers who appeared before it. A former chair of the Law Society, responding to an incident in which a female lawyer, the subject of bullying from a bench of this court, had broken down and cried in court, paraphrased Thurgood Marshall to describe the Court of Appeal, calling it ‘a court of power, and not justice’. Although the Court of Appeal has since become friendlier to the lawyers who appear before it, it is still accused of churning out decisions that are based on procedural technicalities rather than substantive justice. This is an accusation that the Court has found difficult to shake off. In the dispensation that the new constitution promises, this issue will need to be addressed, not only in relation to the work of this court but also the Supreme Court which is yet to be established.

There is obvious need to think clearly about the prioritisation of all the things that must be done with the judiciary as part of the reform effort. While the Supreme Court needs to be set up as a new court, the serving judges cannot, it seems, be considered for positions in this court until the vetting process is carried out. To ensure that the serving judiciary is part of the corpus of judges available to serve in other capacities within the judiciary, the vetting process needs to be prioritised over everything else. If, as is possible, the vetting process takes too long, it may hold hostage the other reforms that are logically depend on its completion.

This article has not even begun to address the internal problems within the judiciary which are myriad and which the new Chief Justice must also address. The internal culture within the judiciary is unsupportive of the objectives for which courts exist. Chief Justice Gicheru erected firewalls which made him inaccessible to his judicial colleagues. Although the Chief Justice, under the former Constitution, was a judge of the High Court as well as the Court of Appeal, Justice Gicheru neglected his membership of the former, which was left to drift on its own. Following his long period as Chief Justice, the internal dialogue in the judiciary has collapsed. The new Chief Justice must re-initiate an internal discourse within the High Court that will result in a shared vision of what needs to be done. Judges must talk among themselves about their work.

Chief Justice Gicheru established divisions of the High Court as a reform measure. However, political control of the judiciary has manifested in the manner in which judges are posted to these divisions and, also, how cases are allocated within the divisions. The divisions are distinctly a controversial matter. The next Chief Justice must, as a first matter, invite a discussion within the profession on how the allocation of judicial work is to be rationalised and the fate of the divisions of the High Court.

Case backlogs in court, the result of delays, are massive and also constitute a matter of urgent priority. However, this issue cannot be addressed effectively until the vetting process is finalised.

Fees payable to the government for filing cases are unreasonably high. There has been quiet resignation to this fate, but the new circumstances provide opportunity to discuss this problem. Delays add to cost, another serious problem within the judiciary which also commends priority. The work of the next Chief Justice must take in these problems.

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* George Kegoro holds a qualification in law from the University of Nairobi and is an advocate of the High Court of Kenya. He has served as secretary of the Law Society of Kenya; the secretary to the Commission of Inquiry into the Goldenberg Affair (2003-2005); the executive director of the Kenyan Section of the International Commission of Jurists (Since 2007) and secretary to the Commission of Inquiry into the Post Election Violence.
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