The turbulence that has rocked Ghana’s Judicial Service, following the latest investigative work of Anas Aremeyaw Anas gives clear indication that the time is ripe for a complete overhaul of Ghana’s judiciary.
Not that the revelations of endemic corruption contained in the said video are coming to Ghanaians for the first time, but that it is the first time incontrovertible evidence on a mass scale has been adduce in support of what is now a widespread perception. The great strides that Kenya has made in recent times in Judicial and constitutional transformation should be something that serve as a guide to countries like Ghana on how best to restore the fast declining integrity of the judiciary.
Public Agenda therefore finds it expedient to share with readers, the speech of Dr. Willy Mutunga, Chief Justice and President of the Supreme Court of Kenya delivered at the opening of this Year’s Annual General Conference of the Nigerian Bar Association, held at the International Conference Centre, Abuja. Dr. Willy Mutunga spoke pertinently, sharing his country’s experience on how Kenya surmounted the similar challenges faced by Nigeria, and now Ghana.
It worth noting that some judicial reforms have become irreversible, irrevocable, indestructible, and permanent.
Historically, the judiciary has been predominantly male-dominated. By 1993, when Kenya Women Judges Association (KMJA) was inaugurated, there were only three women judges. Over the years, there has been a rise in the number of female judges in the Judiciary. At the magistracy level, for instance, there is almost gender balance with 47% representation of female magistrates or 215 out of the 458 magistrates. Out of the 69 High Court judges, 29 are Lady Justices. At the Court of Appeal, 8 of the total 26 Appellate Judges are female while at the Supreme Court, there are 2 female Justices in the 7 member bench. The message here is thanks to the 2010 Constitution the implementation of gender equity in the Judiciary is irreversible.
These reforms include promoting colleagues on merit and in a transparent and accountable manner; equalising salary disparities to reflect the values of equity and equality; making training and travel fair and just; having in place transfer policies that are fair and just and that are authored by the staff; making access to insurance for all; car and house mortgages accessible to all; the pivotal position of JTI is guaranteed; the existence of Judges and Magistrate’s Association and Judicial Staff Association that participate in the governance of the Judiciary; ensuring that the administrative arm of the judiciary facilitates the judicial arm that ensures the core business of administering justice is not jeopardised; democratising governance in the judiciary as decreed by the constitution; the emergence and development of progressive jurisprudence is on course; the project of ?judgment as a dialogue? where judicial officers in their judgment seek to convince the loser that they had justice is now acceptable; and creating a vibrant judicial and public constituency that will make sure that these reforms are permanent.
Despite resistance from judicial officers and staff, the Office of the Judiciary Ombudsperson that receives and acts on complaints against judicial officers and staff has become a critical institution, this is now irreversible. It has restored public confidence in the Judiciary, as have Court Users Committees (CUCs) that are cradles of public participation in judicial affairs and judicial accountability.
CUCs are grassroots structures reflected at the centre by the National Council for the Administration of Justice (NCAJ). The NCAJ is established under the Judicial Service Act. NCAJ and CUCs are the centres of inter-agency dialogue, collaboration, coordination, and interaction. They reflect the vision of the Constitution that decrees robust independence of institutions, but calls for dialogue and inter-dependence for the public interest and good to nurture nationhood in Kenya.
The Judiciary has been a leader in the promotion of dialogue, interdependence, and collaboration as decreed by the Constitution. Although the three arms of the state are robustly independent under the Constitution, the Constitution decrees dialogue among them in the national interest.
These dialogues have taken place through the Judiciary Training Institute workshops between the Judiciary and security agencies, Parliament, constitutional Commissions, and other state organs. The NCAJ is a vehicle for such dialogue. Tripartite dialogues between the President, the Speakers, and the Chief Justice have taken place on ad hoc basis but should be institutionalised.
In these meetings the Judiciary has been able to clarify to the other arms what it does, can do, and cannot do. It has sought to clarify the mandates of the three arms, the sovereignty of the people, checks and balances, and the supremacy of the Constitution. Through such dialogues mental shifts in favor of the implementation of the Constitution are taking place notwithstanding the resistance.
We have used scientific data in aid of the constitutional principle of accountability. Article 10 of the Constitution requires all State Organs, of which the Judiciary is one, to apply the national values and principles of governance enumerated thereunder, in the execution of their mandates. Article 10 (2) (c) in particular identifies ‘good governance, integrity, transparency and accountability’ as part of the body of these principles of governance.
Partly in furtherance of these constitutional provisions the Judicial Service Act 5(2) (b) provided that, every year, the Chief Justice is required to prepare the State of the Judiciary and the Administration of Justice Report (SOJAR), present the report to the public; present it to the National Assembly, and to the Senate for debate and approval; and to have the report gazetted.
Even though the accountability requirements of this statutory provision are clear, the methodology remains a work in progress. There was the necessity and utility from the inception of measuring performance. That is why the Performance Management Directorate was set up as a fully-fledged directorate. Its positive impact on the transformation program, especially on data gathering perspective, has been remarkable. The process of preparing the first two State of Judiciary Reports revealed the centrality of data as a key driver of transformation.
The empirical data and evidence served to illuminate performance, or the lack thereof, and provided a scientific basis for the allocation of resources and policy decisions ? decisions previously made on the basis of ‘felt-needs’, mere observation, or past practice. In its assessment of the outputs of courts, judges, magistrates, and other judicial staff it has engendered internal and external accountability. The internal leadership of the Judiciary is now more accountable in administrative decisions that are expected to be evidence-based. Data has emerged as the king of transformation.
Deepening the culture of data gathering and performance reporting institutionalises accountability, induces performance through competitive and comparative tendencies, and secures transformation permanently. To entrench accountability practices as part of transformation, an expansive view of the provisions of the Judicial Service Act is necessary to entrench accountability as part of transformation.
On the promotion of access to Justice under the first pillar of our (JTF) we have decentralised the Court of Appeal into three regions (circuits) of Mombasa, Kisumu and Malindi; established Judicial Service Week for Criminal Appeals where we dedicate specific weeks for specific judges in a year to hear all criminal appeals in order to clear case back logs, decongest our prison system and in the end ensure that justice is seen to be done to those languishing in prison for at times illegal convictions; and Public Hearings and Live media coverage on matters of Public Interest to comply with the constitutional value of public participation in the administration of justice.
We also acknowledge that only 5% of Kenyans access our formal courts and in compliance with Article 159 of the Constitution we are promoting alternative dispute resolution mechanisms including court annexed mediation, and above all traditional justice systems. Access to justice is about the citizens accessing justice in forums they are convinced they will get justice. We are also working on pilot schemes on how to link the formal justice system to these other forums used by citizens to access justice.
The Kenyan case confirms that the implementation of devolution of political power and resources is ushering in the politics of issues, the central one being the equitable distribution of resources. Kenyans are seeking greater participation in how the resources received in counties are spent by the Governors and the Members of the County Assemblies.
They want to be involved in the prioritisation of projects and public participation at the grassroots is growing. At this level the vision of the constitution that all political and public power is derived from the people of Kenya, and thus the very first attempt to bring the state and its apparatuses under the sovereignty of the people is being made. This great movement of the people is challenged by the crisis of political leadership that focuses on the politics of divide and rule invoking ethnic, religious, regional, class, generational, gender, clan, and racial divisions to keep the political elite in power.
What is worse is the lack of a visible organised alternative political leadership. The middle class civil society leadership still debates the principle of non-partisanship when their grassroots compatriots are debating the formation of political parties that will be anchored on transformative social movements.
So, there is a great movement developing at the grassroots because of the resources that are being directed there, but the absence of an alternative political leadership allows the political elites take political advantage of them. There is still a great opportunity in Kenya for an alternative political leadership to contest political power on a manifesto based on the vision of the transformative constitution.
A humanised state that has a social democratic content is possible. The devolution of political power expands the sovereignty of the people that can be a basis of the deepening our transformation.
Finally, as we envision progressive African jurisprudence based on our transformative constitutions, what is also called the gospel according to the Africans, we must concede that the project of social transformation is fundamentally a political project. In countries where the transformation of the judiciary has irreversible support from the political elites much progress can be quickly made. Where public participation in the politics of the society is robust and unified that could be a great ally to all institutions and to social transformation. We should, therefore, interrogate the limitations that face the various judiciaries.
Transformation as the Kenyan case study shows is at two levels, the theoretical or visionary level and at the level of implementation. At the theoretical level the vision of the constitution is clear as a manifesto for change and social progress. At the implementation level ideological and political struggles abound. The Kenyan Judiciary’s experience of reforms from the margins to the centre is useful. It is testimony that reforms can actually take place in regimes that are anti-reform if the leadership of an institution is ready to struggle for them.
It does not matter that positive outcomes are not readily discernible. The idea is to get the sovereignty of the people, that is, their material interests reflected in the reforms and they will provide the necessary support.
Political will, enabling constitution, credible and interested leadership and membership within the judiciary are primary conditions for rapid transformation of Africa’s judiciaries.
However, the absence of this bouquet of factors should not make Africa’s judiciaries surrender and seek to conform to the status quo. Historically, it has always fallen to some institution to lead the process of change and transformation, even in the most difficult of circumstances.
The church, trade union movements, peasant organisations, civil society groups have at various times in different societies been the agent of transformation. The second generation of constitutions in Africa do not only provide the dynamic legal tools, but also place considerable responsibility on the judiciary to help engender societal transformation. The transformation of the judiciary in Africa is an objective and standard need and I do not know of any African country, however dictatorial, where judges do not enjoy security of tenure.
Realising Africa’s current pressing agenda of development, peace and security, and institution building can only be achieved through the Rule of law. The narrative of Africa rising will only last if we build and fortify our constitutional democracies characterised by, among other things, judiciaries that are independent and that possess integrity.
That is the legacy that our judicial and political leaders in Africa must aspire to create ? a vision which recognises the need for democratic and social transformation and the rule of law as the permanent and indestructible foundations of the future of Africa as a prosperous, equitable, peaceful, inclusive and secure civilisation that can lead the rest of the world.
Being the keynote address delivered by Hon. Justice Dr. Willy Munyoki Mutunga, Chief Justice and President of the Supreme Court of Kenya at the Annual General Conference of the Nigerian Bar Association held at the International Conference Centre, Abuja on the 23rd of August 2015.
Source : Public Agenda