Mutunga’s vision for Kenya - Daily Nation

Mutunga’s vision for Kenya

Friday July 1 2011

Chief Justice, Dr Willy Mutunga

Chief Justice, Dr Willy Mutunga 

Dr Willy Mutunga’s appointment as Chief Justice and President of the Supreme Court was celebrated as a dramatic break with the past.

With his appointment, Dr Mutunga now has the unenviable task of reforming a Judiciary tainted with corruption, incompetence and partiality.

Will he succeed where his predecessors failed?

He discussed the journey ahead in a maiden interview with Saturday Nation’s SAMWEL KUMBA. Excerpts:

What are you going to do to motivate judges and magistrates to deliver your vision?

That will need a discussion with them. I may have to wait until they are vetted and all required employees are recruited. At that point, through various tools, I could make the vision clear. If I discuss it now with them and after vetting they leave, it won’t make much sense.

But once everybody is on board, I have tools to discuss that. It includes issues to do with remuneration. If you look at their salaries, the magistrates earn peanuts.

The difference between what magistrates earn and what judges take home is horrific.

This is part of the reason that makes the transition a bit slippery.

What are your views on taxation?

Everybody has to pay tax. We have made it very clear that judges too are going to pay taxes on their allowances. This, however, has to be done in accordance with the Constitution and other relevant laws.

The Constitution makes judges special taxpayers according to section 160 (4). Here judges have been given privileges to the effect that you cannot tax them to their detriment.

We met with the Treasury permanent secretary and other officials on Thursday over the matter. At the end of July, when tax deductions start, judges have to take home exactly what they have been earning. Treasury will top up and pay the tax arrears.

The other constitutional offices that were previously exempted from paying tax, including MPs, are not protected and they are like any other ordinary taxpayers.

I can only think that lawyers, during the drafting of the Constitution, took care of their brothers in the Judiciary.

The rest have to pay their arrears in full. Otherwise, they should have read the draft constitution and proposed any amendments then.

What kind of judiciary are you envisioning?

As head of a democratised and decentralised institution, I would like to see a judiciary for all Kenyans.

The Judiciary I head should be accessible to all and must be fully staffed. It should have an efficient and effective judicial, financial and management structure.

It must reflect the values enshrined in the Constitution. It must be incorruptible. It must be modern in terms of technology.

ts jurisprudence must meet and eventually surpass international standards through robust and relevant training.

I must ensure that the Judiciary reflects national values and avoids all the biases that result in disunity.

Ethnic, regional, religious, gender, generational and status biases are the bane of our nation-building project and must not be allowed to be the virus that weakens a reformed judiciary.

What do you see as the most important thing you must attend to in your first year as CJ?

Staffing. We need to get the vetting of judges and magistrates behind us as quickly as possible. We must recruit magistrates and judges.

We must restore morale.

A staff that is well remunerated, efficient, incorruptible and hardworking will be a boost for investment, restore the faith of Kenyans in the Judiciary and lay the necessary strong foundation for a reformed and patriotic national judiciary.

There seemed to have been a lot of anxiety between now and the time of your nomination?

There was anxiety for some, astronomical expectations for others and now we have compromised on reforming the Judiciary (that) will never be the same again. Public participation has been great in the recruitment. Kenyans have rightly focused on Chapter 6 of the Constitution. We are now a nation that yearns for upright and honest leaders in all sectors of the society. Kenya will never be the same again.

There is a legal argument among lawyers that perhaps the Supreme Court was not really necessary in Kenya’s judicial context as it is just another tier of an already slow litigation process... that all that is required is for the Court of Appeal to be reformed.

As Chief Justice and President of the Supreme Court, you may have a different view. Please explain why you think the Supreme Court is necessary.

That debate is water under the bridge. We should not engage in negative energy. Let us see how this democratised and decentralised national judiciary operates and delivers on its mandate.

I applied for the position of Chief Justice because the process was transparent, because I knew I would have the opportunity to compete and because I saw in the existence of a new constitution a chance to contribute to the implementation of a popular constitution.

I had waited for this space to open for four decades and I was not going to allow it to pass without competing for an opportunity to make it more open and expansive.

There are people who may be uneasy about your appointment for various reasons, and yet they need confidence in the

judicial system. What message do you have for them?

My message is that I am the unyielding servant of the Constitution and the laws of Kenya. Kenyans are all equal before the law.

Our Constitution does not allow for vindictiveness, biases that I have narrated above and victimisation.

The implementation of the Constitution has no place for selective focus. I am not enslaved by any political, ethnic, religious, regional, economic, gender, generational or foreign interests. It is only the Constitution, and Kenyans collectively, that can claim ownership over me.

There has been talk in the last few weeks of prospective judges’ judicial philosophy. Please tell us what your legal philosophy is and how this would influence your performance as a judge?

What is my judicial philosophy? The basic maxim is that no one is above the law. Fear, malice and influence should not be allowed to taint justice. The Judiciary is the guardian of legality, especially so at the onset of a new constitutional dispensation.

Various schools of jurisprudence contend for supremacy, but our measure of legality should be the invocation of those schools or a merger of them that reflect gains Kenyans have made in the new Constitution.

As Chief Justice and chair of the Judicial Service Commission, you will be involved in the recruitment of judges to be recommended for appointment. What qualities would you be looking for?

The qualities and values are clearly spelt out in the new Constitution. Read sections 10, 168-9, and Chapter 6, for examples.

There have been concerns that the Supreme Court may be short of depth in that there does not appear to be anyone with sound experience of commercial law. Do you agree with this and how do you think this should be ameliorated?

I believe the Judicial Service Commission was able to blend collective intellect, experience and expertise in various areas of the law in choosing justices of the Supreme Court. I do not understand what sound experience in commercial law means.

My experience with great lawyers has a lot to do with sharp intellect, hard work, continuous thinking, reflection, training, team work and a sharp understanding of the non-legal phenomena. We must judge the Supreme Court by its performance. Let us wait and see.

The keenness with which Kenyans followed the Interviews with the JSC and the confirmatory hearings with the Parliamentary Committee would appear to indicate that the whole country expects much of the Judiciary in the new constitutional dispensation.

What historical issues do you think you need to watch out for to avoid undermining the constitutional shift?

The Judiciary has to guard its independence jealously from political, commercial and social forces if it is committed to the implementation of the new Constitution.

There is great public demand for a mechanism of appraising individual judges’ performances, which has previously been resisted on the grounds that it would threaten judicial independence. Do you agree that a performance review mechanism is necessary? How would you propose the Judicial Service Commission implements this?

Performance review mechanisms must be set up. The JSC will craft these and the entire Judiciary will debate them so that there is consensus and judges and magistrates understand the consequences of non-compliance.

The Vetting of Judges and Magistrates Act provides in section 12 some key ingredients of performance.

The confirmation of your nomination by Parliament coincided with the JSC’s announcement of the five other nominees for appointment to the Supreme Court. How soon do you expect the Supreme Court to be in full operation?

The Supreme Court will be in operation as soon as the suit filed against five of its members is heard and determined.

Do you consider the fact that the Judiciary will be required to present its Budget to Parliament on an annual basis as a compromise on Judicial independence, especially if Parliament were to reduce the Budget?

Since both judicial and legislative authority are derived from the people of Kenya, the new Constitution demands that both arms of state focus on the bigger picture, the national interest. I do not believe Parliament has rescued the Judiciary from the Executive only to enslave it! 

The Judiciary and the Bar have traditionally been “strange bedfellows” in Kenya and have been seen to be antagonistic rather than in partnership to achieve justice. How do you propose to engage the Law Society of Kenya in effecting the changes expected of the Judiciary under the Constitution?

The Judiciary is committed to a healthy partnership between the Bar and the Bench in the administration of justice. Structures of ensuring this happens exist and we should develop effective communication mechanisms that ensure that the welfare of Kenyans is never jeopardised.

Having said that, I believe both the Bench and Bar need to have the right to monitor each other and avoid behaviour, such as corruption. That does not fit the description of “strange bedfellows.”

The constitution requires the Judicial Service Commission, which you chair, to implement a system of continuous professional development for the Judiciary. Would you be willing to recommend that the scheme be made compulsory for judges in any given year as it is for advocates?

The Judiciary Training Institute will make sure judges are effectively trained. We cannot claim to be learned if we are averse to robust training.
Finally, what would you want to be the enduring memory of your tenure as Chief Justice when you retire?
That, in the eyes of Kenyans, I performed as well as the late Chief Justice CB Madan!