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Report inspiring but must Judiciary really sacrifice quality for concrete?

Tuesday October 23 2012


I have just read the State of the Judiciary report that was launched last week. Clearly, the Judiciary is changing quietly but in very fundamental ways.

Dr Willy Mutunga’s stewardship of this critical institution is a compelling study on the impact of personality in an office.

In a context where political leadership is plagued by fleeting alliances; where personality differences have come to be treated as if they signify something of profound political significance, Dr Mutunga stands out as a beacon of hope.

There is an important lesson here. At very critical junctures, this society still has the capacity to produce leaders who are dedicated to purpose and principle.

The problem is that our finest — men and women of calibre, character and knowledge — still shun public office.

The type of politicking going on right now is not giving us any hope. We have leaders who, glued to their personal prospects, shamelessly look on us as vote-banks, and are incapable of providing leadership without fanning ethnic solidarity and hatred.

Like people who witnessed the Holocaust, the images of the suffering, which our people underwent during the post-election violence of 2008, have stubbornly refused to disappear from our collective psyche.

But our leaders persist on playing the very same games, which put us in trouble in the first place. Worse, the goings-on at the Independent Electoral and Boundaries Commission give neither hope nor promise.

The leadership is riddled with feuds between factions. What do you say of an entity whose managers are forever plotting against one another?

The latest is a sterile disagreement over whether or not to allow the Ministry of Public Works to purchase pens and envelopes on the commission’s behalf.

There are just too many conspiracy theories floating around the corridors of the commission. But I digress.

Reading through the State of the Judiciary report, it is clear that Dr Mutunga is crafting together an efficient machine.

I am particularly impressed by the fact that in a very short time, the Judiciary has acquired a great deal of capacity to collect statistics and to report what is going on in such a competent manner.

I like the level of disclosure and transparency displayed in the report. This is how you cultivate faith among people in a democratic institution.

But what I find most revealing in the report are the detailed statistics on the number of cases which end up in court.

Clearly, the citizens of this country are taking cases to court in mind-boggling numbers, and for every conceivable relief.

The statistics show that between July 2011 and June this year, a total of 428,821 cases were filed. Every judge has an estimated burden of 542 new matters every year.

What is responsible for this state of affairs? Is the upsurge a natural phenomenon or are we dealing with an artificial demand caused by an explosion of lawyer-stimulated litigation?

In future, the statisticians at the Judiciary should break this data down to make it possible for analysts to arrive at a more scientific explanation for this worrying trend.

We need numbers we can use to make comparisons with trends in other countries and see whether we can come up with benchmarks.

My suspicion is that we may be dealing with an artificial demand side-issue reflecting a growing commercialisation of the legal profession.

We must not forget that the money for building concrete structures must compete with the money spent on prevention of TB.

We all suffer from the affliction that equates development with concrete structures. Should we be spending more money in preventing crime or on building more court-rooms?

What should be the appropriate budgetary policy response when you find yourself spending more on concrete buildings than on preventing malaria and HIV/Aids?

These questions are pertinent because the Judiciary has been quick to tout the fact that under the new Constitution, it enjoys “financial autonomy”.

There was no time when the legal profession was so commercialised and the courts of law so clogged. When you throw money at building more courtrooms and hiring more judges and magistrates, you only solve one side of the equation.

I look forward to reading the next issue of the State of the Judiciary.