The transformational component of Dr. Willy Mutunga’s tenure as Chief Justice was visible to the public. The red and black robes which judges hitherto adorned, introduced by our British colonial masters, were replaced with green laced and yellow robes. It was also under Mutunga’s tenure that the grey wig, also worn by the judges was made optional – a departure from an antiquated colonial tradition.
These were probably the most visible changes. On a more fundamental note, as soon as he assumed office, Justice Mutunga launched the Judiciary Transformation Framework 2012-2016 which was anchored on four pillars – One, People-focused Delivery of Justice, two; Transformative Leadership, Organizational Culture, and Professional Staff, three; Adequate Financial Resources and Physical Infrastructure, and four; Harnessing Technology as an Enabler for Justice.
Launching the program in May of 2012 Justice Mutunga stressed that “the transformation of the judiciary must be seen as part of the transformation of Kenyan society commanded and envisaged by the Constitution”. Emphasizing that through the framework, the judiciary merely sought to realize the ideals Kenyans entrenched in the 2010 Constitution, the CJ said; “We have a duty to restore the judiciary to its rightful constitutional and political place, and forge a new relationship with the public whose duty it exists to serve.”
“The (framework’s) genesis, however, has a long historical basis, the constitutional moment only being propitious. The decline in public confidence, the disdain from other arms of government, and the dissipation of internal confidence within the judiciary are the enduring legacies of the judiciary’s own historical injustices – evidence of an institution that hungers for renewal and restoration of its lost constitutional mission. The overweening influence of the executive created an enfeebled judiciary, an arm of government strikingly reluctant to play its classical role in the defense and upholding of the constitutional principle of separation of powers. This capture by narrow interests created an institution plagued by corruption and inefficiency – a veritable figure of scorn at odds with the public interest. While many members of its staff worked diligently under extraordinarily difficult circumstances, this has been an institution in the vice-grip of a crisis of confidence,” said Justice Mutunga in the preface to the framework, which in my view quite accurately captured the general public opinion and attitude towards the judiciary as well as the judiciary’s attitude towards itself.
On May 15, 2015, as Chairman of the National Council on the Administration of Justice (NCAJ), Justice Mutunga commissioned an audit of Kenya’s Criminal Justice System whose aim was to create an understanding of pre-trial detention “in respect to case flow management and conditions of detention”.
Having been held in police custody for 49 days before I was produced in court in 1986 during the infamous Mwakenya trials, this audit was of particular interest to me because it came at a time when I was trying to understand why the trial magistrate failed to take cognizance of my lengthy and obviously unconstitutional pre-trial detention yet it was indicated in my charge sheet.
But, in my view, the significance of the audit, which was conducted under the auspices of the NCAJ, the Legal Resources Foundation Trust (LRF), and Resources Oriented Development Initiatives (RODI-Kenya), was the finding of how the justice system was seriously skewed against the poor. It revealed that ours was a justice system entrenched in elitism. It was a system that was structured to conserve the colonial ideology of justice for the racial “cream” and that had little sympathy for (in fact it had a violent attitude towards) those outside the white European race. In the context of independent Kenya which the study sought to understand, it was a justice system that had scant regard for those outside the sphere of the wealthy – an economic fringe whose access to justice was (I believe it still is) limited by their socio-economic and political position.
It was a judiciary designed to affirm the supremacy of the executive as well as individuals close to executive power by denigrating the supremacy of the people through the constitution and their elected representatives in the legislature. In the process, it also disempowered itself by surrendering to the will of a dictatorial executive. In the words of Justice Mutunga, “We found a judiciary that was designed to fail.”
“Key findings of the Audit confirm that Kenya’s Criminal Justice System is largely skewed against the poor. It is an indictment of a system that is expected to guarantee justice to people from all walks of life, including all forms of vulnerabilities. The audit found that more poor people are arrested, charged, and sent to prison as compared to the well-to-do. It was an interesting finding that economic driven and social disturbance offenses which are rated as petty – such as offenses relating to lack of business licenses, being drunk and disorderly, and creating a disturbance, form 70% of cases processed through the justice system. A major concern as per the findings was that serious offenses such as organized crimes, capital offenses, and sexual offenses were found to have the highest rate of acquittal and withdrawals,” observed Justice David Maraga, the second Chief Justice after Dr. Mutunga following enactment of the 2010 Constitution, in a preamble to the audit report.
The 380-page report comprehensively covers a wide range of areas that are critical to the proper administration of justice including safeguards against the abuse of police arresting powers, remand of pretrial detainees in prison, bond and bail processes, vulnerable groups in the Criminal Justice System like children, the mentally ill, immigrants and women, among many other important issues.
In my view, the audit was a defining factor for a judiciary that sought to reform itself and transform the public’s perception of the institution as a factor of justice in its distributive and procedural perspectives – that, bar the prohibitive lawyer’s fees which may be outside the control of the judiciary, everyone can access a court of law where procedures are simple and consistent. This was important because, as one of the three arms of government, the judiciary must make it its responsibility to ensure, or at the very least to be concerned, that economic, social, political, and cultural circumstances do not stand in the way of universal access to justice. This indeed would support the first doctrine of the Judiciary Transformational Framework mentioned above – a People-focused Delivery of Justice.
Indeed, as Justice Mutunga said in the preface to the Framework, the judiciary was faced with the task of winning back public confidence and recapture “public imagination, not through its outdated aristocratic poise and rituals, but rather through the rigor of its jurisprudence”.
In this regard, one of the key result areas outlined in the framework stipulates that justice must be done to all irrespective of status. “It (the constitution) also demands that all state organs must ensure access to justice for all persons. These twin constitutional demands guarantee justice for all persons regardless of status. They also require that justice be delivered expeditiously and without undue regard to technicalities. Most importantly though, they require the judiciary, as the custodian of justice in Kenya, to take effective steps to reduce the obstacles that hinder public access to information; ensure proximity and physical access to courts, and simplify court procedures so that all litigants can understand and effectively participate in court processes,” says the document.
Justice Mutunga also initiated the compilation of the Criminal Procedure Bench Book, a quick reference for judges and magistrates presiding over criminal proceedings. The 200-page Bench Book provides guidance on statutes, judicial authorities, and policy directions that are relevant in different stages of criminal proceedings. The Bench Book follows the order of a typical criminal trial from pre-trial matters to appeal.
These are fundamental transformational initiatives instituted by Dr. Willy Mutunga, although some were completed during the tenure of Justice David Maraga.
While we are yet to have an all-embracing audit of Justice Maraga’s tenure, one of its most apparent features was the reversal of the dressing code for judges instituted by Justice Mutunga. Although it may seem unimportant in a casual observation of its relationship to justice delivery, it is important to note that it is accorded high significance as a key result area in the Framework for Judiciary Transformation.
Pillar number two of the framework is Transformative Leadership, Organizational Culture, and Professional and Motivated Staff one of whose key result areas is Philosophy and Culture. “The philosophical and cultural orientation of the judiciary has reflected its founding history of dominance, power, prestige, and remoteness, as opposed to service and equality. Further, its architecture, rules, dress code, and other rituals have uprooted it from social reality. As a result, the public perceives the judiciary to be alien and insensitive,” the judiciary judged itself in its institutional transformative framework. To change this image, it proposed to create an institution that is friendly and fair to people, “both in the hardware of its outlook and the software of its decisions and processes”.
However, Chief Justice David Kenani Maraga’s reversal of the judges’ dress code was almost completely obscured by the nullification of the 2017 presidential election by the Supreme Court. But although it seems innocuous, it was nevertheless a significant move considering that the red robe laced with black is an unwelcome reminder of the racially discriminative colonial judiciary as well as the incompetence of the post-colonial judiciary that Justice Mutunga aptly described as “so frail in its structures, so low on its confidence, so deficient in integrity, so weak in its public support that to have expected it to deliver was to be wildly optimistic”.
Be that as it may, the nullification of the 2017 presidential election was a definitive moment not only for the judiciary but also for the 2010 Constitution’s ability to bring order to the most ethnically divisive and violent event in Kenya’s political history. It marked a willingness by political actors to resolve electoral disputes in the corridors of justice rather than through violence that had cost the country hundreds of lives ten years earlier in the wake of the 2007 elections. It was a significant vote of confidence in the judiciary that was further reflected in the peacefulness of the consequent re-run.
The ruling was hailed internationally as a first in Africa and many other parts of the world. Kenya was described as the most democratic country in the continent while the judiciary was pronounced as the most independent. “A hundred years from now, the decision will be remembered, not because it granted the opposition another opportunity to capture the presidency, or cheated the incumbent out of a win, but because it reaffirmed Kenyans’ strong belief in constitutionalism, peaceful resolution of conflict, and the rule of law,” wrote Prof. John Mukum Mbaku, a Senior Fellow at the Global Economy and Development, Africa Growth Institute.
But the excitement of the moment belied a few challenges and murmurings. The power to nullify an election is very momentous and therefore requires considerations that may lie outside the written law. In my view, the first consideration in the determination of an election dispute should be the impact of the arbitrator’s decision on the voter. This is because nullification of an election ultimately punishes the voter by condemning him to a second day at the polling station – often marked by long queues in the scorching sun or in the rain. It also condemns the voter to finance the repeat election. For an election to be nullified, therefore, there ought to be proof that violations significantly affected the results.
Other than the flouting of procedures of transmission of election results from the polling station to the constituency tallying station and then to the national tallying center as prescribed by the constitution, the Supreme Court did not adduce evidence that the violations negatively impacted the election results. The court also ruled that there was no evidence that the candidates committed any election offenses, finding only that the Independent Electoral and Boundaries Commission (IEBC) had engaged in various irregularities and illegalities in the transmission of results.
Be that as it may, legal observers have cautioned that the Supreme Court did not set the standard that should be observed in order for an election to be annulled. This was reflected in the rulings on the election petitions that followed the historic decision where it was observed the decisions of the lower courts significantly differed on the degree of violation of or non-compliance with procedures that would warrant the nullification of an election.
According to the Carter Centre, one of the key organizations that observed the election, the Supreme Court ruling, and the rulings of lower courts in the election petitions, it was found that the courts interpreted the Supreme Court ruling differently, some taking the ruling to mean that any non-compliance was sufficient to annul while others reasoned that violations of non-compliance had to be substantial.
Even more confounding was the assertion by the Carter Centre that the Supreme Court itself did not consistently follow the prescription it gave in the 2017 presidential election petition when it heard petitions from the rest of the general election.
“The Carter Center analyzed several of the electoral challenges through their final adjudication by the Supreme Court and found that the court’s decisions contradicted its own legal precedent. While the court consistently reaffirmed the standard established in the Odinga ruling – i.e., if the conduct of the election in question substantially violated the principles for transparency, verifiability, and accountability laid down in the constitution or in law, the election could, on that ground alone, be voided – very few rulings resulted in an annulment of an election, even when those elections were marred by seemingly clear violations of the constitution or law. Only three of the 299 cases resulted in a by-election,” the organization asserted
However, it is clear that under Justice Maraga the judiciary maintained the revolutionary transformation, both of itself, the other two arms of government, and the public that were envisaged by the 2010 Constitution. Indeed, whatever its technical implications, the nullification of the 2017 presidential election unleashed in the judiciary courage and independence that had never been imagined before. Soon after the nullification, parliament moved swiftly to enact laws to alleviate the electoral inadequacies that had been identified from the presidential election petition at the Supreme Court. But the High Court declared all the laws unconstitutional and the subsequent by-election, which parliament intended to be governed by the new laws, had to be carried out under the shadow of the old laws and the weight exerted by the Supreme Court ruling.
These are just a few instances of how the judiciary has transformed itself since the enactment of the 2010 Constitution. Admittedly, the real boundaries that mark the space of each of the three arms of government and the bonds that bind them together are yet to become quite clear considering that under their independence lies their partnership in governing the country as well as their antagonism in constraining the power of each other.
These are the challenges that the incoming Chief Justice, Martha Koome, will have to confront. We hope that Justice Koome will be up to the task especially at this time when it is apparent that the struggle for power between the judiciary and the executive is intense. At the same time, she will need to continue the transformational trajectory started by Dr. Mutunga in order for Kenyans to realize the ideals entrenched in the 2010 Constitution.
The Author is a former Managing Editor of The People Daily and a former political prisoner.
