The Judiciary has been a good partner of devolution

By DR WILLY MUTUNGA County Governments and their leaders have given practical meaning to the dictum ‘government by the people, for the people, and of the people’. It has yielded friendlier notions of government. Devolution has made the people see government not necessarily as ‘an agency of force’ but as ’an agency of development’. Devolution helps make the point that government need not be ‘ugly’ or ‘fierce’ to qualify as government. The defining feature of a government need not be subjugation, captured in the old folklore vocabulary of ‘serikali’, but rather in a new norm of service, ‘utumishi’. As we serve, we must take note of this significant leap in Kenya constitutional and political culture, bequeathed to us by a great Constitution. You need to recognise that history has bestowed upon you (the governors) an extremely important responsibility of transitioning the country from a centralized to a devolved system of government. Devolution is the constitutional device that Kenyans created to cure inequality, underdevelopment, marginalisation and exclusion. You are the custodians of this dream and this transition. Its fragility and threats are the true test of your leadership, and there is neither margin of error nor opportunity to fail. As the first Chief Justice under the new Constitution, I am all too aware of the challenges of transition, and especially in a country whose elite, and an institution whose history, have a near- incurable addiction to the status quo. Conservatism and regression seem to have a strong allure and they always try to pull us back whenever we put the nation on an ambitious path to progress. But such is the dialectic of change, and the steep gradient that we must sometimes climb, is in the ordinary business of change. And it is this status quo that the new Constitution overthrew. Those of us who belong to the first generation of leadership under this new Constitution, have a far bigger responsibility to protect and advance it. The foundational character we create will have permanent influence on the constitutional, democratic and developmental outcomes for the county and country for generations. And it is not always easy, as you have discovered, as the old order resists actively. You learn to cross the river by feeling the stones, and, occasionally, are cut by them. And to cross successfully, you must build principled and durable partnerships. I am happy with the partnership we have been able to forge between the Judiciary and the County Governments. The Judiciary has been transforming and we have made significant advancement, including within the context of devolution, in spite of the fact that Judiciary is not devolved. We have taken a citizen-centric view in executing our mandate, in the belief that the centrepiece of our Constitution is not so much our location in the constitutional architecture, important as this is, but rather the satisfaction of the ordinary citizen in our service delivery. The cacophony of noises that you sometimes hear actually obscures massive gains that the Judiciary transformation has made. For example, you would not know that we have reduced case backlog by over 50%, from over 1 million to just below 500, 000. You would not know that the waiting time in the Court of Appeal has reduced from 9 years to 3 years. You would not know that today, after years of struggle, we now have performance contracting in the Judiciary. You would not know that we can today measure judicial output per judge, per magistrate, per Station, or per Division. You would not know that we have about 100 construction and rehabilitation sites throughout the country. You would not know that we have revived the Judiciary Training Institute which now hosts over 65 training sessions a year, up from about 5 per year. You would not know that the Judiciary is the first public sector institution that has acquired a disability-compliant bus for its staff. You would not know that our staff have excellent mortgage, car loan facilities, and medical scheme to die for (pun intended). And, you would not know that we have established an elaborate anti-corruption and integrity infrastructure (from Office of the Judiciary Ombudsperson, JSC Inspectorate, Directorate of Internal Audit and Risk) that has improved the corruption detection, reporting and enforcement systems. What you see is this infrastructure in motion and action. The public has a belief in it and that is why it reports because it believes that in the Judiciary, action will be taken. It is evidence not necessarily of an increase in corruption but on the detection abilities and effectiveness of this system. That is why since 2012, and long before fighting corruption became vogue, the Judiciary provided leadership amidst outsized political opposition, but we prevailed: three judges have been referred to a Tribunal on allegations of corruption, and a few others are under consideration in the JSC; a Chief Registrar and five Directors have been dismissed; nine magistrates and 65 judicial staff are facing disciplinary proceedings, some have been dismissed or retired in public interest. This is not an institution that is sitting on its laurels. This is an institution that, at every turn, every day, every year, has shown willingness and resolve to act and not to fudge in the fight against corruption. We are acting. We would love others to show us what they have done. The true test of leadership against corruption is not necessarily an elimination of the vice – as desirable as this has been since Jesus’ times – but a willingness to act on it when you find it and a creation of an accountability infrastructure to deal with it. And this is what we have done in the Judiciary and we encourage all of you to do in your counties. That is why, beyond the institutional infrastructure I have created in the Judiciary, I am submitting myself voluntarily to a forensic audit and, as you wind up your first terms in office, I would like each one of you to do the same. I believe that, in addition to a strong regime of laws, the fight against corruption must also be premised on the power of personal example, and if all leaders, including Governors, MPs, the Speakers, Judges, Cabinet Secretaries, the President and his Deputy were to subject themselves voluntarily to forensic audits, we would cover good ground in this struggle. Voluntary forensic audit is a good commitment barometer in the fight against graft. There can be no gainsaying the fact that the Judiciary has been a good partner for devolution. Both in terms of its institutional expansion as well as jurisprudential articulation, we have given meaning and effect to an important part of Kenya’s new constitutional and democratic architecture. A few examples are germane: First, we have expanded access to justice through the increase of judicial officers to several counties. The number of High Court stations has risen to 34 today from the 17 I found when I assumed office in 2011. And as a result, today, only 13 counties do not have High Court stations but we intend to open High Court Sub-registries in those Counties. The JSC is determined to post judges in all these counties within the shortest time possible. This is because every part of this country matters and denial of access to justice even for one person is an affront to our Constitution. When I hear some voices protesting the establishment of High Court stations in all counties arguing that they are ‘far flung’ areas, I ask the question: ‘far –flung from where?’ The territorial integrity of this country is indivisible and there are no ‘far- or near- flung’ Kenyans. How is it that the language of ‘far flung areas’ does not arise when it comes to Kenya Revenue Authority? If the burden of taxation is no respecter of distance, why should the benefit of expenditure be? As part of our transformation, we have also decentralised the Court of Appeal to Malindi, Kisumu, and Nyeri – and will soon be moving to Eldoret and Nakuru. Your constituents, who used to travel to Nairobi, or wait twice a year when the Court of Appeal was doing circuits, no longer have to do that. In fact, because of this intervention, the waiting time for the Court of Appeal in Nairobi has reduced from about nine years when I assumed office, to three years. In the outer stations, the waiting time in some instances has reduced to less than one year. The Court of Appeal in Malindi, for example, is hearing matters real time. That is transformation. That is access to justice. I want to thank several County Governments for their support to the Judiciary. Many such as Busia, Meru, Nyandarua and Makueni have donated or offered to donate land. Machakos, Kajiado, Laikipia have also offered land for courthouses and facilities. We are looking forward to concluding negotiations and transfer of the properties. Unbeknown to many Kenyans, Court infrastructure has been in a state of unacceptable dilapidation. Infrastructural development has been a key component of our transformation. Today, as we speak, we have about 100 court construction and rehabilitation sites across the counties. I am sure some of you may not even be aware that construction works are going on in your backyards. Indeed, within the first three years of my term in office, we managed to complete stalled court construction buildings in Kisumu, Busia, Naivasha, Sirisia, Gatundu, Migori. There are other construction projects on course for completion or ground breaking in Nyando, Muhoroni, Oyugis, Meru, Nkubu, Chuka, Embu, Mandera, Garissa, Molo, Engineer, Nyamira, Kisii, Kajiado, Kibera, Muranga, Kitui, Kangema,Hamisi, Vihiga, Mombasa, Marimanti, Othaya, Runyenjees, Bomet, Makindu, Kibera among others, and I will show you the pictures of the progress made so far. These are real developments not ‘ghost projects’ that this country is so accustomed to. This is what transformation is about. Nobody can doubt the tremendous progress and difference that has been made on this front, and that work must continue. We have secured financial support for these projects from the World Bank and the National Government. I appeal to the County Governments to continue supporting these projects and even make budgetary provisions to construct more courts, especially the magistrates’ courts, as well as residential houses for judiciary staff. I also appeal to you Governors to visit these construction sites to ensure that the buildings that are coming up are of good quality. After all, it is an investment that is being made in your area in order to offer services to your people. But the Judiciary’s commitment in expanding the footprints of justice is not limited to brick and mortar alone. It is also manifested in the number of mobile courts we have introduced. This has increased from 19 to 51, and through better resource management and rationalisation, this expansion has been achieved within the same budget ceilings. We are reaching more of your constituents through this service. The Judiciary has also waived court fees for County Governments as part of its support to devolution. Further, we have also begun a pilot on Alternative Justice System (AJS) in five Counties – Nyeri, Machakos, Isiolo, Meru, and Kericho Counties. We want to harness indigenous and traditional knowledge systems and thought, to help the country reduce the burden of litigation and eliminate case backlog. The Judiciary has done exceptionally well in developing jurisprudence on devolution. Our Courts must be commended for making judicial determinations and pronouncements that have affirmed Devolution. From the Supreme Court decisions, including on the Division of Revenue Bill, to several Court of Appeal and High Court decisions on a range of issues on devolution, the courts have been very articulate and courageous. We have settled questions of Division of Revenue Bill, the mandate of County governments, laid down correct procedure for the removal of Governors, laid down the law on the transfer of health services to County Governments, clarified inter-governmental relations, settled the question of removal of members of county public service boards, enunciated the role of County Governments in the realisation of socio-economic rights, and, lately, pronounced ourselves on the classification of roads. With this record in burgeoning case law, no one can fault the contribution of the Judiciary in providing Constitutional anchor and succour to devolution in a moment of transition, and doing it with courage, erudition and conviction. Even when we have disagreed, it has been grounded on solid legal reasoning. I invite Kenyans to read the Kenya Law/CoG Devolution Case Digest, and the IDLO/JTI/Katiba Institute publication titled Animating Devolution: The Role of the Judiciary that were launched in December 2015. As Chairman of the National Council on the Administration of Justice (NCAJ), I am proud of the commitment that the NCAJ agencies have exhibited in supporting devolution. I know there are some outstanding issues with a few, but these are being ironed out and next month, we shall be holding the Second NCAJ-CoG Annual Conference where a binding Comprehensive Collaboration Framework will be signed by all agencies as the official reference point for our engagements. Friends, in brief, this is the Judiciary scorecard on Devolution. I am proud of it. I hope that the record can be improved and bettered. And it cannot be if county governments are beset by corruption and oversight institutions created to help, exhibit a cowardice, unwillingness, and inability to confront the demon. When the progressives fight corruption, you will be amazed and surprised by the might and level of support they will receive, even from the unlikeliest of quarters. In the last five years, I have been involved in this cage fight with the dragon, and every time I land a blow, I hear the loud squeals and howls of the corruption brotherhood and sisterhood from strange and suspect places. The powerful allies of the corrupt will torture logic and engage in reverse reasoning. This is why, when progressives invoke the refrain ‘Aluta Continua’, even the corrupt and their rather ‘helpful’ powerful allies cheer because, to them, it sounds like a clarion call, ‘the Looting Continues’. We must stop them, both at the national and county levels.

Writer is Chief Justice of Kenya. He made the remarks at the launch of countdown to the 3rd Annual Devolution Conference 2016 last month

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