Let me start by honoring a great East African citizen who has just passed away: Prof Ali Mazrui, a distinguished scholar and friend whose intellectual contribution to the cause of justice, rule of law, and good governance – both here and abroad – is indisputably immense. He is definitely a prominent member of that pantheon of the world’s best thinkers, and this region should be proud that it produced such a great mind that was listed as one of the top 100 most influential thinkers in the globe
Only a year ago, Prof Mazrui, quite infirm but still the public intellectual he was, agreed to be a guest of the Kenya Judiciary. He delivered very thoughtful lectures to judges on the interplay between law and politics, and gave sharp insights on the transformation of the Kenyan Judiciary in a historical and regional context.
In his inimitable way, Prof Mazrui revisited the intellectual debates that used to take place in East African universities on key governance and public policy issues between academics and leaders – itself a reminder that that culture which interfaces public service (of which judges and magistrates are part), and academy, needs revival. Principled discourses and disagreement on public interest issues are important in fostering accountability and enriching thought. It is only when ideas contend that knowledge thrives and society grows. ‘Development’ is a child of ideas, not thoughtlessness.
And that is the context in which this Conference must be seen: That public servants, who are caught up in the daily grind of duty and cause lists, must occasionally disengage to reflect on their work in order to make it better in practice. If we do not research, if we do not discourse and conduct these knowledge-building enterprises in a manner that explores the full length and breadth of human experience and disciplines, then our claim to learnedness becomes hollow.
This is an important convocation of judicial minds that Kenya is very proud to host, particularly at this time when our Judiciary has been undergoing a major transformation. This transformation is unprecedented in terms of ambition, scale, method, effort and effect. Indeed, judiciaries in other jurisdictions, including from the East African region, have even found it too radical. But it is necessary if only to try and restore public faith in an institution neglected for so many years but which is so critical to our political stability and economic development.
In this important transformation journey, major milestones have been achieved: The open and very public recruitment of the Chief Justice, Deputy Chief Justice and other judges; the vetting of judges and magistrates; the rapid but still insufficient increase in the number of judges and magistrates; the direct and unflinching onslaught on corruption in both the judicial and administrative cadres; greater public outreach; expansion and decentralization of the Court of Appeal; expansion of court infrastructure; mainstreaming of training through the Judiciary Training Institute, among others.
It is to the people of Kenya and the Constitution 2010 that credit must go in making it possible for these achievements to be made. As a Judiciary, we have an obligation to accelerate and deepen the transformation process so that we improve on the quality of service delivery.
Ladies and Gentlemen, let me now briefly turn to the theme and focus of this conference – the East African experience in the administration of justice and the relationship between the three arms of government in that regard.
The East African region has a strong history of instability, conflicts and under-development. Single party dictatorships, military rule, rising poverty and inequality are part of our political and development history and reality. The single most important factor that explains this unimpressive historical fact is the breakdown in the rule of law.
If Africa wants to reverse her bad fortunes, secure her emerging democracies and sustain her economies then its people, leaders and institutions must demonstrate a great respect to the rule of law. It is our only shield and defender — and the moment we begin to bend or ignore the rules, stability and progress will always be in jeopardy.
Kenya’s 2010 Constitution is a progressive and radical one. It is indeed a transformative governance charter. Its implementation was going to pose a challenge to all institutions. But the challenges of transition that all institutions face must not be allowed to snowball into full-blown crisis. The tone and posture that we assume as leaders in managing these challenges determine whether they remain challenges in the realm of normalcy or they become crises in the mold of catastrophe.
The Judiciary will continue to do its part as mandated by the Constitution but remain alive to the fact that for there to be success in the Administration of Justice, there has to be robust independence of the Judiciary and a constructive inter-dependence with other arms of government. That is the reason you see the Chief Justice and the President here together – two arms in amity and unity, discussing how to advance the cause of justice.
Respect for the rule of law is not merely cultural; it is also about economics. East African countries need to invest more money in the development of their judiciaries as a rule of law imperative. This is also because the speed of justice is important not just in helping to uphold peoples’ rights but also in reducing the costs of business.
Even though Kenya has increased its support to the Judiciary, all Judiciaries in the region have a history of financial neglect that undermines their capacity to deliver justice quickly. I will illustrate using the Kenyan example.
According to a study just finalized by our Performance Directorate in 2012/2013, Kenyans filed about 54,000 cases in the High Court alone! The Judiciary has 90 High Court judges, which means that, on average, each judge has 600 cases from one year alone. Even if all the 90 judges were sitting throughout the year without weekends and holidays, they would take about three years to conclude one year’s matters! This is not sustainable. It is the reason we ask for more judges; it is the reason we also encourage alternative dispute resolution mechanisms. Kenya has slightly more than 700 judicial officers (from Resident Magistrate to Chief Justice) for a population of 40 million. Germany, in contrast, has over 20,000 judicial officers for a population of 80 million.
The search for a right balance between the three arms of government is also taking place within the context of new challenges such as security and terrorism. I am glad that this Conference will re-examine this global dilemma and we look forward to receiving outcomes that feed initiatives we have commenced on Bond, Bail, and sentencing policy.
I want to recognize the significant progress that has been made in the establishment of the East African Court of Justice. The EACJ is making important decisions that have a bearing on our jurisprudence. I hope that stronger linkages can be made between the East African Court of Justice and national judiciaries as well as National Bar Associations. I wish to make a commitment that the Kenyan Judiciary will support these regional initiatives.
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