Chief Justice David Maraga, who is also the President of the Supreme Court, recently marked 100 days in office by launching a blueprint to transform the Judiciary. In a wide-ranging interview, the Sunday Nation’s Wanjohi Githae seeks answers on some of the most pressing issues facing the institution.
It is about 100 days since you took office. What is your assessment of the job so far?
The task before me is critical to the socio-political and economic health of Kenya and Kenyans; no illusion about that. I am happy to state that I took over an institution that was already in active transformation mode. A solid foundation had been laid, straddling a multiplicity of areas within a clear and focused strategic framework. Key areas where transformation had started taking place included access to justice. Here, a massive court infrastructure development programme was underway; the number of judges, magistrates and Kadhis had shot up significantly; the Court of Appeal had been decentralised to four stations, while High Court stations had risen from 14 in 2011 to 34. Kadhi’s courts had been increased from 15 to 56, while magistrates’ courts numbered 120 from 109 in the same period. A lot of other significant achievements had been registered in the areas of jurisprudence, training, reduction of case backlog, anti-corruption strategies, governance and pilot projects in ICT, among others. In this regard, I pay special tribute to my predecessor, Dr Willy Mutunga, for leading this effort.
What have you achieved since you took office?
It is still early to present a sparkling scorecard. While the last three months have largely been a period of listening, reflecting on issues and critical assessment of the situation, that is not to say we have not covered new ground. Based on this listening, reflection and assessment, I have managed to build my agenda for the next five years. That is the strategic blueprint I launched on January 26, themed “Sustaining Judiciary Transformation (SJT): A Service Delivery Agenda.” It is a practical roadmap to what I will call a new deal in service delivery. I urge Kenyans to read it and hold me to it. Besides the SJT, I am happy with what we have managed to achieve in the last few months. The Supreme Court is now fully constituted and work is going on. Last month, I established three new High Court stations in Narok, Makueni and Nyandarua, bringing the total number of High Court stations to 38. Only nine counties are without a High Court but work is in progress.
We are going into the General Election in August. Is the Judiciary ready to handle election disputes?
The answer is yes. A lot of work on election preparedness has been undertaken since the formation of a specific committee on election matters six years ago. The committee, now called the Judiciary Committee on Elections (JCE), which I had the privilege of heading for five years before I was appointed Chief Justice, has steered all election dispute management preparations and processes with great results. You will recall that disputes arising from the 2013 elections were heard and determined in record time, for the first time in Kenya’s long political history. JCE has been active ever since and is currently involved in preparing judges, magistrates and the Judiciary in general for the next round of election petitions.
But there were concerns over the timeline set for the determination of the presidential election petition …
There is general consensus that the 14 days allocated to determine a presidential election petition is not sufficient. JCE and other stakeholders made proposals to increase that period to 30 days. However, the Supreme Court will be ready to determine such a matter within the constitutional deadline. We are ready for both scenarios.
Why is the Supreme Court yet to nominate its representative to the Judicial Service Commission (after the term of Justice Smokin Wanjala ended)?
We don’t have any problem in that area. JSC has been conducting business without any challenge. For the record, the Supreme Court is now fully constituted and is transacting normal court business. There is healthy collegiality and unity of purpose. The judges will soon pick their representative to JSC.
In his exit interview, your predecessor, Dr Mutunga, said case backlog had reduced from one million to about 500,000 which is still high. What are you doing about this?
I have outlined my 15-point action plan against case backlog clearly. In short, the measures include the establishment of new High Court stations in the nine counties of Kwale, Lamu, Wajir, Mandera, Isiolo, Samburu, Elgeyo-Marakwet, Nandi and Vihiga. Magistrates courts will be established in all the 290 sub-counties. Further, we plan to eliminate the problem of missing files through a raft of steps that include digitisation, stricter file management regulations and sanctions against wayward individuals. Case adjournments will be managed better, as will be documentation during trials. Co-ordination between the Judiciary and other agencies will be improved for efficiency. Special crash initiatives such as Justice@Last service weeks will be held, while full attendance of witnesses in court will be emphasised. Other approaches relate to hearing and delivery of judgments, electronic recording of court proceedings and a requirement for each court station to develop an action plan to finalise all older cases that have been in existence for five years or more by December 2018. I have a team and mechanisms in place to implement and monitor this plan of action. Importantly, our judges, magistrates and staff are on performance contracts, meaning non-performers will be sanctioned with greater ease.
The quality of legal training, just like other courses in our institutions of higher learning in Kenya today, is worrying. What are your thoughts on this?
This is a widely shared sentiment in the legal fraternity. I will be engaging key institutions such the Council for Legal Education, Kenya School of Law and universities as we all seek to reverse this trend.
You inherited a fairly independent Judiciary. What are your plans to protect the Judiciary against political interference?
Independence of the Judiciary has been a hallmark of our transformation. I have committed to protecting and advancing this independence. While we believe in constructive engagement and inter-dependence with other arms and agencies of government, we shall never compromise our constitutional independence.
Courts have sometimes been branded too lenient on terrorism and corruption suspects. Some have blamed extra-judicial killings of suspects by police on this aspect. What is your take on this?
Courts operate on the basis of the rule of law. Court processes can be long and frustrating but that is no reason to suspend the rule of law. Obeying the law, however inconvenient, is the only way to maintain political and social stability. The country must know that courts convict or acquit based on the evidence provided. That said, it is also important for judges to recognise that if they allow themselves to be negatively influenced by parties or related forces, they are compromising the rule of law and inviting an extra-judicial culture that will hurt the whole nation, themselves and their families. We have made a number of reforms to address thorny issues in this area. We have Bail and Bond Guidelines that have standardised things to a large extent in the administration of justice. We have Sentencing Guidelines that serve as a useful guide to courts. Judges and Magistrates understand that each case has to be determined on its own, taking into account the gravity and impact each crime has, first on the individual victims and the country as a whole.
The Judiciary has been accused of issuing orders that delay cases for the benefit of the accused, especially in corruption cases, what is your take?
The orders you refer to are legitimate devices of law. I must concede that they have had the effect of delaying disposal of corruption and other criminal cases. Discussions and practical steps have been going on to ensure that such devices are employed judiciously. The principle is that judges must do their utmost to ensure substantive matters are determined as soon as possible, where such orders have been granted. These discussions have resulted in the establishment of the Anti-Corruption and Economic Crimes Division and the gazettement of several magistrates to speed up hearing of those cases. We have seen a significant positive shift and the delays have been significantly minimised.
There has been an outcry that commercial courts hinder, instead of greasing, the wheels of commerce. Please comment
Yes, that has been the situation for some time but as things stand now, the outlook is positive. This is because the Commercial and Tax Division of the High Court has seen the most drastic service delivery oriented reforms in the last two years or so. The division now has six judges, up from three. The division is also the beneficiary of a pilot court transcription system that has enhanced efficiency. To ensure the work of the Commercial Division is responsive to the needs of those it serves, there exists an active Business Court Users Committee that was launched in December 2015. Last month, I launched the Commercial Law Guidebook that simplifies procedures of commercial litigation. Next month, the division will benefit from an e-filing system through which litigants will be able to file their cases without visiting the often busy registry. Based on feedback, I have no doubt that the future can only be brighter for commercial courts.
Missing files continues to be a problem. Why?
I am happy to report that this problem, although not eliminated, has been addressed significantly. Measures include computerisation of court registries, strict monitoring and audit of file movement registers, reconstruction of missing files within 21 days and disciplinary action against those responsible for missing files.
It has been argued that judges with specialisations are deployed in any court as decided by the Chief Justice, denying them an opportunity to enrich jurisprudence in their areas. What do you say about this?
The debate is healthy, there is value in specialisation, but there is also value in diversity, especially for judges keen on upward mobility. The profession has not fully specialised and that is an important consideration. As the economy and the profession grow, specialisation will take a more central place.