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Opinion & Analysis

CJ plans to clear cases backlog in 2 years, may carry out lifestyle audits

Chief Justice David Kenani Maraga. PHOTO | BD GRAPHIC
Chief Justice David Kenani Maraga. PHOTO | BD GRAPHIC 

It is almost 100 days since I took over as Chief Justice of the Republic of Kenya. I wish to take this opportunity to articulate my mid-term and long-term vision for the Judiciary; and to pronounce my aspirations and agenda for the period that I will serve as the Chief Justice of Kenya.

As many of us know, judicial authority is derived from the people and shall be exercised by the courts and tribunals established by or under the Constitution. The Judiciary is therefore accountable to the people and is obligated to serve them diligently.

During my term in office, I will operate on the basis of these constitutional and democratic truths and even more: that the Judiciary is the defender of us all; both the weak and the mighty; the rich and the poor; as well as the ruler and the ruled.

The Judiciary operates on the principle that all authority is subject to, and constrained by, law. It is not the will of an individual, or a group, that is the governing force in society.

In the last five years, the Judiciary has been on an earnest transformation path. Significant and unprecedented achievements have been made in laying the foundations for transformation under the Judiciary Transformation Framework.

In this regard, the Judiciary and the entire country owe a debt of gratitude to my predecessor, Dr Willy Mutunga, for his exemplary and bold leadership that put the Judiciary on a permanent track of transformation leaving a rich legacy of change.

The transformation initiatives of the last five years have created the preconditions for final take off in the Judiciary transformation. God has bestowed upon me the duty and privilege to pilot and fly the institution to greater heights. This, I am happy to do.

Individual accountability

I seek to preside over a service oriented Judiciary: a Judiciary that gleams through its buildings but glitters through its services; a Judiciary that is not self-serving in legalese but public-serving in litigation; a Judiciary that is sensitive to the social impact of its decisions and not one that is stone-deaf to its societal context; a Judiciary that enhances shared cohesion and economic development and not one that marginalises or divides — in short, a transformative Judiciary that looks beyond the court room and seeks to provide substantive justice to all.

This is the reason my vision is titled Sustaining Judiciary Transformation: A Service Delivery Charter. Sustaining Judiciary transformation is predicated on the notion of individual accountability.

My tenure will be defined by service delivery based on the performance of court stations throughout the country.

Each court station will develop and display prominently in its premises its own service charter, aligned to the service delivery objectives elaborated in the sustaining Judiciary transformation agenda.

That charter will contain a comprehensive set of performance indices, including corruption and public complaints reduction strategies; case backlog reduction strategies; duration for concluding civil and criminal matters; range and state of ICT services; timelines in retrieval of files; timeframes for writing of judgments and rulings in accordance with the provisions of the Civil Procedure Rules; duration for availing typed proceedings; number and impact of court users committee meetings and open days held periodically; among others.

Every year, the Chief Justice will pronounce the best and worst performing court station based on its service delivery charter commitments. These performances will have a bearing on staff promotion and reward and sanction mechanism will be established.

The next phase of Judiciary transformation will be driven by technology and guided by the principles and practices of integrity; individual and institutional accountability as well as performance.

While the first phase of transformation focused on institutional capacity building and enhancement — a focus on the ‘‘wholesale’’ or ‘‘strategic’’ side of reforms — this next phase will look at service delivery; the ‘‘retail’’ or operational side of the business which will be characterised by modern administrative reforms.

In other words we shall focus on business process re-engineering in our courts and registries.

In this regard, I will espouse international best practices in the justice sector, particularly in case management and disposal as well as in the use of ICT.

I will also apply contemporary methods of measuring our performance, judicial education and court administration.

We will modernise the courts, registries and operations; open communication with you — the consumers of our services; and secure the position of our courts as leaders in the region, on the continent and in the world at large.

I will ensure that the Judiciary stands as a reliable pillar in maintaining a just and fair society, an accountable and democratic government and a strong economy.

As I was thinking about this day, I found myself playing back some questions that came through during the Judiciary Service Commission (JSC) interviews.

This has helped me to reflect on the expectations of my triple role: as chairman of the JSC, as President of the Supreme Court, and as Head of the Judiciary.

I also have reflected on the state of the country — the worrying level of ethnic polarisation; the upsurge of suspicion among political contestants; the escalation of threats to violence and the grim poverty of our people.

In this mire, I can’t help but ask myself; what contribution can the Judiciary make in alleviating this regretful state of things? How can the Judiciary come to the positive assistance of the consumers of its services? How may the Judiciary assist in increasing the level of citizen trust in state institutions?

How can the Judiciary assist to foster peace and harmonious coexistence among our communities? This armchair review of our social, political and economic landscape brings into sharp focus the monumental task ahead of us, not least because the answers to most of these questions are not entirely inspiring.

When I reflect on my desire for our Judiciary, my goals and targets and regardless of the strategic Big Bets in the vision statement, I see the purpose of my leadership and the vision for the Judiciary as encompassing the desire of Kenyans for continuity, change, and innovation.

To attain these objectives, the Judiciary must be an institution driven by more consumer-friendly attitudes: entrepreneurial; accessible; nimble and dynamic.

To achieve these characteristics, the Judiciary has to be an agile institution. So this strategic framework is in fact our manifesto for an agile Judiciary. Agile because we want to have the ability to be both stable and dynamic.

These twin attributes will be evident in our organsational structure which defines our governance how decisions are made; fiscal discipline; how resources are distributed; and delivery of services — how things get done including the management of performance.

At the Judiciary we believe that our institutional framework should allow us the flexibility to regularly rethink and, if necessary, redesign our structures.

We espouse governance mechanisms and processes which permit us to strike a balance between speed and stability. In many respects, the concept of agility is not so much a purpose as it is a means to a bigger vision.

In essence, we must adopt an agile spirit because we want to have a bias for action. We want to be agile with success in mind.

And the definition of that success is to add value to people’s lives. In the institutional framework document, I have outlined six strategic Big Bets which espouse my vision for the Judiciary. Please allow me to briefly outline the essence of each of these action points.

Enhancing access to justice

The first of these big bets is enhancing access to justice. Many ordinary Kenyans hold the view that the formal justice system is not for them.

Several factors account for this: Either the courts are too far away from where they live, or; they do not understand court processes, or; unfortunately, and quite often, they cannot afford the fees required to prosecute or defend their cases to conclusion.

I recognise that in the last five years the Judiciary has invested in more magistrates courts, especially in sub-counties that did not have them; established more High Court Stations; decentralised the Court of Appeal; and piloted Alternative Dispute Resolution (ADR) programmes such as arbitration and court-annexed mediation processes.
But a lot more remains to be done.

The court-annexed mediation has proved successful in both the Commercial and the Family divisions of the High Court in Nairobi. We propose to roll these ADR processes to all other courts in the country.

Our pilot projects on traditional methods of dispute resolution in several communities such as the Kipsigis, the Kikuyu, the Kamba, the Turkana, the Meru, the Tugen and the Somali have proved fairly successful.

In the next phase of this project we intend to bring into the fold all other communities across the country. I am convinced that in collaboration with the Judiciary, these communities and many others in the country will settle many disputes and thus obviate the need to file their claims in court.

Plans are also underway to operationalise the Small Claims Court and fully institutionalise all statutory tribunals and to assist poor litigants. We are taking necessary action to operationalise the Legal Aid Act as soon as possible.

Clearance of case backlog

The second strategic big bet is clearance of case backlogs. Over the years, case backlog has been a stain and negative blot on the Judiciary’s image and remain a serious challenge.

Since I assumed office as CJ, several representatives of professional, business as well as societal groups have accorded me the favour of courtesy calls.

The analogous, unimpeded and unified complaint of these groups reduces to a common song with similar stanzas: banks are complaining that court injunctions have hampered their efforts to realise securities in cases of default in loan repayments; borrowers, on the other hand, are complaining that failure to grant them injunctions has led to the illegal disposal of their properties by banks; employers complain that courts are liberally, and at will, restraining them from terminating the services of their employees for good cause; the employees themselves complain that the courts take ages before granting their claims such as terminal benefits; on his part the attorney-general complains that the courts’ conservatory orders are causing havoc to the government’s development agenda.

The list is legion and I could go on with more examples, but you get the picture. The common denominator is not so much the type of remedy issued but the time it takes to determine a matter on merit.

While the data available to us indicates that case backlog has reduced by over 50 per cent in the last five years, viewed against the human capital available on the bench, the reduction is disproportionate and not encouraging.

As at December 2016, there were a total of 505,315 cases pending in our court system. Of these, 360,284 have been pending for five years or longer. I promise to utilise the ‘‘service week’’ and the day-to-day hearing arrangements to clear all cases that are more than five years by December 2018.

Thereafter we shall have a sustained onslaught on old cases and with the cooperation of all parties, in particular the litigants and the Law Society of Kenya, I am certain that by the end of my tenure in December 2020 we will have no cases in court older than three years in accordance with the international best practices.

Dealing with corruption in the Judiciary and handling of complaints against judicial officers

The third strategic big bet relates to corruption in the Judiciary and handling of complaints against judicial officers. It is common knowledge that corruption has reached endemic proportions in our country. Our media are awash with allegations of corruption literally on a daily basis.

And whereas the Judiciary, more than any other arm of government, has waged a gallant war against this vice, it still remains a challenge. In the Ethics and Anti-Corruption Commission (EACC) surveys of 2009, 2011 and 2015, the Judiciary was reported to be the 6th, 4th and 9th most corrupt public institution signifying progress and regression but overall still not eliminating the vice.

Corruption and the Judiciary must be hostile terms and any ranking, however high or low is still a big, unacceptable stain. Even as I think of dealing with allegations of corruption in government and other institutions, I want to first focus on tackling corruption in the Judiciary.

Under this strategic framework, we have identified several interventions to deal with this evil.

These include strengthening the oversight organs of the Judiciary, in particular the Office of the Judiciary Ombudsperson and the Directorate of Risk and Audit.

In respect of the Office of the Judiciary Ombudsperson, to maintain the security of tenure of judges and the confidence of magistrates and other judicial officers in the discharge of their duties, we propose to have a system of thorough investigations.

In this regard, we propose to restructure and strengthen the office of the Judiciary Ombudsperson, firstly, by having the Deputy Chief Justice as its head and secondly by establishing a full-fledged secretariat to assist in its operations.

The JSC has embarked on this restructuring process and it is hoped that the exercise will be completed by the end of March this year. Where we get evidence of any form of corruption after investigations, we will take prompt and decisive action against the staff involved.

The linkage of the Judiciary’s financial operations to the Treasury is another aspect of corruption in the Judiciary. Besides achieving complete financial autonomy, plans are underway to delink the Judiciary’s financial accounts from the District Treasuries.

We have also embarked on fast-tracking the JSC disciplinary processes and work more closely with external integrity institutions such as EACC.

When we started mainstreaming ICT in our financial processes by introducing the use of M-Pesa services revenue collection shot from Sh500 million in 2011 to Sh2.1 billion in the 2014-2015 financial year and the collections have since continued to rise.

This is a clear demonstration that harnessing the use of ICT in revenue collection will significantly reduce corruption in our financial management.

In this regard, I propose to fully automate revenue collection and, where necessary, undertake targeted lifestyle audits on judicial officers.

With regard to handling of corruption cases filed in our courts, the talk out there is that corruption cases against the rich and mighty drag forever in our courts and end up in acquittals.

It is common knowledge that a petition has been filed against me challenging the practice directions I recently issued for the speedy disposal of those cases.

Another petition has also been lodged with the JSC urging it to petition the President to form a tribunal to investigate and have me removed from office for issuing those directions, terming them as a violation of the Constitution and an act of incompetency on my part.

I respect the sub judice rule and wish to say nothing about those practice directions.

However, I wish to assure Kenyans that the Judiciary is committed to expeditiously hear and determine all cases of corruption. If sufficient evidence is adduced, we shall convict irrespective of the accused persons’ status in society.

If no credible evidence is adduced, we shall of course acquit. In either case, we shall henceforth make the grounds for our decisions clear to the public.

The Judiciary under my watch is not going to be a door mart for the failures of other players in the justice chain or for cases designed to fail.

Digitisation

The fourth strategic big bet is digitisation of court files and proceedings. Harnessing ICT in service delivery is the flagship of my tenure as CJ. I will endeavour to have it succeed. Part of the reason why we must be agile hinges on the fact that we are living in an electronic age.

It is undeniable that our slow pace in embracing technology, the low quality of our ICT infrastructure and minimal innovation, are serious drawbacks to our being a world-class judiciary.

Admittedly, due to corruption, in stealing documents from court files and accidental loss or mutilation of documents, the integrity of a fair proportion of our court records is wanting.

Digitisation will guarantee the integrity of court files and court records in general. One of the major impediments in harnessing ICT in service delivery is attitude. Many think it is too late for them to learn how to use a computer.

We have to change this attitude. I learnt how to use a computer at the age of 50. Even now at the age of 66 I type all my judgments.

Earlier, I spoke about the duality Kenyans’ desire for continuity and innovation. An agile organisation will innovate on the backdrop of a strong core.

In this regard therefore, by March 2017, all court stations will have Wi-Fi connectivity; be enabled to receive mobile payments of court fees, deposits and fines; electronic filing of court documents; and rather than travelling long distances to court, mwananchi will be advised on the status of his court cases by sending an SMS.

Rule of law

The fifth strategic big bet is on the rule of law. As you all realise, the rule of law is the safeguard of law and order in society. The law, and especially court orders must therefore be obeyed by all.

Any sensible Kenyan knows that if we maintain the disturbing culture of disobeying court orders with impunity, the rule of the jungle will take over and this country will slide into lawlessness.

If the government or its officers disobey court orders, that invites anarchy. As Chief Justice, I want to say this: if Kenya is to remain in the league of civilised nations then all and sundry, including the government, must obey court orders.

If anyone is aggrieved by any court order, he should appeal against it or apply to set it aside. Under my watch, the Judiciary is going to firmly deal with cases of disobedience of court orders and maintain the rule of law.

Besides enforcement of court orders, I seek to preside over an independent Judiciary which, with the support of the bar, will vigorously and at all times defend the Constitution and dispense justice to all irrespective of status.

We will serve equally, the powerless and the powerful, the low and high in society, the injured and the oppressed.

The traffic sector is a major site where the Kenyan public experiences acute injustice. It is a serious indictment of the Judiciary that a driver who pleads guilty to a charge of over-speeding spends the whole day in court waiting to pay the fine imposed on him or her.

To address this challenge we will henceforth enforce compliance with traffic guidelines issued by the former chief justice and have offenders pay fines through mobile payments and go to their businesses.

Leadership and governance

The sixth and last strategic big bet is on leadership and governance. In this regard I will expand the Judiciary’s leadership advisory council to include all levels of the Judiciary hierarchy and strengthen court users’ committees.

Even though not devolved, the Judiciary will continue to strongly support devolution and build partnerships with the Council of Governors (COG) in the administration of justice at the county level.

High Court stations will be established in the remaining nine counties by the end of 2018, and magistrates’ courts in all the 290 sub counties in a phased manner.

We are in an election year. I wish to reiterate what Justice Mbogholi Msagha, the Chairman of the Judiciary Committee on Elections, and I have stated several times in the past; that the Judiciary is ready to hear and determine, within the timelines stipulated in the Constitution and Elections Act, all election disputes and petitions that will arise before or after the August General Election.

The writer is the Chief Justice and President of the Supreme Court of Kenya. These are excerpts from a speech he delivered last week during the launch of his Strategic Blueprint for the Judiciary.

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