Transforming the Judiciary using lessons from Kenya


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.

ill begin at the Supreme Court, and indeed, with the Chief Justice. We are guided by the wisdom of the Nigerian proverb from the Igbo that ?A bad habit that lasts more than a year may turn into The true hinge of the Transformative Constitution to social transformation lies in the jurisprudence and judicial practice that the courts generate in their everyday work. This theory of interpreting the 2010 Constitution has given birth to the decolonising jurisprudence of social justice.

I want to emphasise here our commitment to the need to develop new, not only highly competent but also indigenous jurisprudence. I link this last adjective to the Constitution’s value of patriotism. I conceive that it requires the judge to develop the law in a way that responds to the needs of the people, and to the national interest as constitutionally codified. I call this robust (rich), patriotic, indigenous, and patriotic jurisprudence as decreed by the Constitution and also by the Supreme Court Act of Kenya.Above all, it requires a commitment to the Constitution and to the achievement of its values and vision.

The decolonising jurisprudence of social justice does not mean being insular and inward looking. The values of the Kenyan Constitution are anything but. We can and should learn from other countries. My concern, when I emphasise ?indigenous? is simply that we should grow our jurisprudence out of our own needs, without unthinking deference to that of other jurisdictions and courts, however, distinguished. And, indeed, the quality of our progressive jurisprudence would command respect in these distinguished jurisdictions. After all the Kenyan constitution is one of the most progressive in the world.

While developing and growing our jurisprudence Commonwealth and international jurisprudence will continue to be pivotal, the Judiciary will have to avoid mechanistic approaches to precedent. It will not be appropriate to reach out and pick a precedent from India one day, Australia another, South Africa another, the US another, just because they seem to suit the immediate purpose. Each of those precedents will have its place in the jurisprudence of its own country.

A negative side of a mechanistic approach to precedent is that it tends to produce a mind-set: ?If we have not done it before, why should we do it now?? The Constitution does not countenance that approach.
The Constitution took a bold step and provides that ?The general rules of international law shall form part of the law of Kenya? and ?Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution?. We have become as noted earlier not only the users of international law, but also its developers and shapers.

Our jurisprudence must seek to reinforce those strengths in foreign jurisprudence that fit our needs while at the same time rescuing the weaknesses of such jurisprudence so that ours is ultimately enriched as decreed by the Supreme Court Act.

The Judiciary Transformation Framework (JTF), 2012-2016
The JTF is our blueprint for laying a strong foundation for a transformed judiciary. The framework has four pillars: access to justice, infrastructure, transformative leadership, and using technology as an enabler for justice. We dusted off many reports that had recommended radical reforms in the Judiciary, but the absence of political will made their implementation impossible.

We simply told everybody in the Judiciary that we were going to implement reforms they themselves had agreed upon only that we had to take into account the new Constitution. This was a great strategy to nip internal resistance to the JTF in the bud.

Knowing there was no political will internally and externally to transform the judiciary we cautiously started from the margins. We focused on the judicial culture that the public found repellent. The Judiciary Cultural Revolution hence begun.
Long regarded as distant, arrogant, bewigged and bewildering, the deliberate attempt to humanise the judiciary won much public acclaim and support. We debated and agreed that judges of the superior courts would not wear wigs; that all judicial officers, from the Magistrates to the Supreme Court would be addressed as ?your honor? that stopping judges from playing God; deconstructing why we are called ?justices? when we commit injustices to the people; creating a pledge from judicial officers and staff that humanised our administration of justice.

The judiciary cultural revolution also included re-orienting the institution as a service not lording institution. It included simple messages to the public to demand better services from us coupled with basic re-training and re-immersion for our officers to learn the basics of public service. It included, for example, the innovation of the SIX PLEDGES displayed on all our court stations and which all Judicial Officers were required to adhere to. The first two of which, human as it is, were remarkable in its absence in the ?old? Judiciary:

They read:
We pledge to cordially greet you and welcome you to our courts.
We pledge to treat you with courtesy, dignity, and respect.

We made the Judiciary a service institution, a Judiciary for all Kenyans. We established a public complaints mechanism ? the Office of the Judiciary Ombudsperson, located in the Office of the chief Justice.

We allowed internal equity of voice and horizontalised the institution through a process of inclusion.
(For those who are not Africans, it is difficult to understand why this is an important transformative practice. Suffice to say that, drinking tea is deeply embedded in Africa and Kenya; but access to this socio-cultural good was underpinned by power dynamics in the judiciary. In Kenya chai (tea) also means a bribe. So our slogan became the judiciary must give tea (justice) to Kenyans and never take it!).

At any rate, with the ushering of our cultural revolution in the judiciary, drinking tea was democratised and all staff in the Judiciary in all court stations were henceforth entitled to tea; something that was bizarrely a preserve of the heads of stations and their secretaries! The internal resistance to this policy remains one of the most bewildering aspects of our transformation. We kept telling judicial officers and staff that if they could not give justice to their colleagues how could they convince other Kenyans that they would get justice.

We also started monthly tea sessions at the Supreme Court, sessions that were attended by the CJ, staff and judges. There was an important lesson here: by giving the rank-and-file within the institution a voice and dignity to speak up and participate in the governance of the institution, we were also locking them into the transformation ideology; giving them a stake; and insuring against backsliding by their seniors.

By delivering our colleagues from administrative tyranny; whimsical transfers across court stations in the country; stagnated promotions and sexually-transmitted promotions (STPs), we gave them a reason to believe in an institution that could stand for their rights and justice; and they reciprocated by serving the citizen better; and finding innovative solutions to their local problems.

We revived the Judiciary Training Institute (JTI) to become our institution of higher learning, the nerve centre of our progressive jurisprudence. JTI co-ordinates our academic networks, our networks with progressive jurisdictions, our training by scholars and judges, starting with our own great scholars and judges.

As we have sought to rid the judiciary of corruption we have encountered the resistance of corrupt cartels inside and outside the Judiciary, including the bar. The struggle to make the Judiciary a beacon for anti-corruption struggles in the country continues. We have established internal structures in the Judiciary to undertake our own investigations. After relative successes owing to recruitment, better terms to judicial officers and staff, rigorous disciplinary procedures by the JSC, vetting of judicial officers, we are now undertaking forensic lifestyle audits that wa custom.?

We also sought support from the donors to create capacities in the new offices in the Judiciary set up under the Constitution. In 2011 the OCJ had two secretaries and eight bodyguards. Through the help of donors the capacity of the OCJ includes Chief of Staff, Communications expert, Legal Counsel, and the Office of the Judiciary Ombudsperson.

By : Public Agenda

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