The Honourable Justice William Ouko: A Lifelong Commitment

By Kevin Motaroki

People think of judges as being judgmental. Justice William Ouko would disagree. “Because a judge doesn’t decide a case until s/he has all the information and is in a position to pass judgment. You have to be fair, and the ruling has to be the best in accordance with the facts and the law.”

At my prompts, sometimes out of his own volition, Justice Ouko quipped, rhetorically, “It is just so much easier when we all play our part” through our two-hour interview. He believes in destiny and duty; that we, all of us, but especially judges, owe it to a higher power to use their positions and discretion to reverse tyranny, whatever its form; that history is the ultimate judge, and no one really ever gets away with injustice; that judges can be wrong — it is only human — but must never, ever tread on the ‘wrongful’; that courts fail when they disrespect the law and ‘refrain’ from empathizing with the persons who appear before them; that great things are described in singular words — such as humility.

Let’s start at the beginning: how did serving as Judiciary Registrar prepare you to serve as a judge?

The most important bit is that I learned to be an administrator in the judiciary, which is a privilege few judges get. And, as someone who, as the Judiciary’s accounting officer, interacted with other accounting officers of the three branches of Government, I had a glimpse of what role politics plays in judicial transformation or stagnation. As the Registrar (now CRJ), I worked under seven different chief justices, served countless judges, magistrates, and staff, visited virtually every court in the entire country and developed interpersonal relationships which in turn built on my emotional intelligence while drawing many valuable lessons from other jurisdictions I visited; some of those experiences have shaped my world views, particularly on the meaning of the rule of law and constitutionalism.

In hindsight, would you argue one is better placed as a judge if they transition from the magistracy or administrative positions, such as CRJ, than say from academia or the bar?

I don’t believe that to be necessarily true; I know many brilliant judges who didn’t rise through the judicial ranks or judiciary administrative positions. You could say that rising through the ranks lends one experience that cannot be obtained otherwise, but it can also be argued that rising through the ranks might limit or confine your worldview. Many distinguished judges in the superior courts today joined the Judiciary directly from private practice and academia. What necessarily makes one a great judge is honesty and fidelity to the rule of law? One simply needs to be honest and courageous and apply the law fairly and faithfully. It is especially valuable to possess the fortitude, intellectual autonomy, and practical wisdom to navigate the many obstacles that get erected in a judge’s way.

Is that a philosophical statement?

[Laughs] No, it is the truth — my truth.

What is your judicial philosophy?

Properly, I do not subscribe to one. I find that personal philosophies encumber one and can even cause distortions in interpreting the Constitution and the law. But if I were to judge myself, I’d say I oscillate between being a liberal and moderate, depending on the issue before me. I believe that constitutions, like life itself, are dynamic and open to interpretation. In interpreting or applying the Constitution as judges we must do so in a way that responds to the needs of the people and to the national interest; in a way that develops the law and contributes to good governance because “ law is always speaking’. To quote a favourite scripture, laws are made for men, not men for laws. For me, staying true to this edict is what gives meaning to the phrase “spirit of the law.” I have also been told that I can be quite moderate. I can summarise the question of my judicial philosophy with the following lesson:

“When judges get carried away by their convictions of where rightness and justice lie and stray too far from the established rules of the Common law or the words of statutes, they create uncertainty. If those convictions are held on issues that are political, then they will arouse animosity as well as support. And if the political issues are serious and large, as are those of industrial relations, judicial pronouncements begin to lose their authority and their legitimacy” — 33 Griffith The Politics of the Judiciary 205.

It has been argued that Justices serving in courts of last resort sometimes have little other than their personal preference concerning the result to guide them in deciding cases When, if ever, is it appropriate for an appellate judge to decide a case based on their philosophy?

Judgments can be personal, but they must be grounded in facts and law. One mark of a good judge is their ability to divorce their feelings from a case, even when it is difficult to do so, to rely solely on the facts presented, and apply those facts to the relevant laws. You could think of the courts as society’s Emergency Room. Nobody wants to go there unless they have a medical problem. And when one has to go, they want the best medical professionals, doing their best to help them. Courts must do the same for legal problems. A judge must always remain faithful to the oath of office: to impartially dispense Justice in accordance with the Constitution and the laws, without any fear, favour, bias, affection, ill-will, prejudice, or any political, religious, or any other influence, and to promote fairness.

How would you say the values you describe feed into your legacy as President of the Court of Appeal?

My time at the Appeal Court is perhaps the most satisfying period in my service in the Judiciary so far for various reasons. First, I can genuinely say that I left a very collegial court; judges get along really well, despite their differences in perspective. We achieved this through introducing social visits amongst judges and their families and engaging in community work, such as mentorships programs and helping needy children, holding informal seminars or planting trees. Secondly, I had a chance to contribute to our body of jurisprudence because of the nature of cases I had the privilege and honour of presiding over. I also accelerated the concept of RRI (Rapid Response Initiative) and circuit courts, which saw judges move between stations and regions to hear longstanding cases. This improved our operational efficiency despite our compressed numbers and had the dual effect of driving down case backlogs and bringing the court closer to users by demystifying our status and work. Lastly, I oversaw some critical infrastructural developments, which included completing the refurbishment of the Nakuru Appeal Court Building and refurbishment of Mombasa Old Court to house the Court of Appeal. At the same time, the design and tendering process are at an advanced stage for a standalone Court of Appeal Building in Nairobi, but was slowed down by the judiciary budget cuts. I wish my successor better luck and success.

You’ve joined a Supreme Court that has often been criticized for issuing unoriginal or unimaginative judgments and being uninspiring to lower courts. How do you perceive your role, as part of the Supreme Court collective, in responding to such criticism?

Kenya’s Supreme Court has been in existence for a decade. If you compare us with the United Kingdom’s Supreme Court, which is also a little over a decade old and from a country whose jurisprudence we often use as a yardstick, given our history, then it could be said our Supreme Court has had a slow jurisprudential growth spurt. But that’s a very high standard and perhaps even unfair to compare ourselves to. Ours has even been accused of having an insatiable appetite for jurisdiction and to some extent being inconsistent in its decisions. Questions of integrity have also been raised. As a result, public confidence remains low. However, to a large extent, I believe some these criticism are based on the ignorance or bad faith of those opposed to the court. No doubt the Court has made great strides in the development of our jurisprudence; jurisprudence that have guided the rest of the courts in Kenya and in some instances beyond Kenya. For the short period I have been in that Court, I can confirm the commitment and professionalism of the Judges, and dedication of the staff. Instead of being discouraged, the Court ought to introspect and answer its critics by speaking to the people we serve every time, explaining to them what we have done or intend to do as a Court.

During the interviews for Chief Justice, some commissioners, particularly those representing the interests of the Executive, expressed concern at the prospect of a chief justice who espouses ‘judicial activism’. In public and judicial circles, there exists the sentiment that activism is the best way of checking the excesses of Executive power. To what extent should the doctrine of judicial activism apply when interpreting and applying the law?

Some of the courts in Kenya have been accused of being overly activist and insufficiently deferential to the people’s elected representatives. But those who criticize the courts on this ground misunderstand the proper role of the judiciary. The courts, as the custodians of the Constitution, human rights and fundamental freedoms must stand in the way of democratic majorities that are likely to degenerate into majority tyranny, by striking down those laws that offend the Constitution and by interpreting and applying the Constitution and laws in a manner that advances good governance and guarantees human rights. I do not, however, advocate for judicial activism that usurps the functions of other branches of Government or when it is unleashed to punish or seek revenge on any branch of Government because that can be potentially dangerous and might lead to judicial overreach. I believe judges ought to be governed by the bounds of legal text and jurisprudential edicts.

It helps when the arms of government with a quarrel can dialogue, which is easy to do when we have the nation’s best interests at heart. I’d like to pose a challenge to the Executive: you have the power and instruments to afford to ignore court orders, but what message does that send to the citizenry? How obedient to the law can a citizenry that witnesses such high-profile tantrums be? That they too can ignore courts and life will go on? I think that is a recipe for anarchy. It is so much easier when we all do our part in good faith and obedience to the law and governance institutions.

What remedies are available to courts when the Executive ignores or undermines court orders?

In working democracies, the question of a Government disobeying or ignoring court orders is unheard of and cannot even be imagined because it can lead to anarchy. We need to ask ourselves, why would citizens obey court orders or indeed the law if the Government does not? There are vital lessons in history that those who deliberately disobey the law ought to learn from. That said, courts are not helpless in the face of disobedience of their orders by the high and mighty. The rallying call is to apply the law without fear: cite for contempt if you must, even if the contemnors can’t be arraigned before you, and let history be the judge.

What is your most favourite/fulfilling aspect about being an appellate judge?

Unlike the first and last elections of the President of the Court of Appeal, where the difference in votes was a single vote between the winner and runner-up, I received an overwhelming vote across the board. That was critical for acceptability and teamwork. Throughout my three-year tenure, I got exceptional support from my fellow judges and, as a team, addressed major challenges, including a backlog of cases and delays in delivering services, as a result. To be a team leader of distinguished group of jurists was a humbling experience. However, the downside of my tenure was that it coincided with budget cuts, which affected our plans and programs as a Court to render efficient and speedy judicial service.

Which jurist, living or dead, do you admire the most and why?

The late Justice Fred Kwasi Apaloo, a Ghanaian jurist who served in Kenya in the High Court, Court of Appeal and later Chief Justice of Kenya from 1993 to 1995 (he served his country Ghana too as Chief Justice  from 1977 to 1986). Listening to him make a presentation to newly recruited District Magistrates in 1987 left me with no doubt that I had made the right career choice. When he returned to Kenya as Chief Justice, I had risen to the rank of Senior Deputy Registrar. His arrival was a highly guarded secret because of various succession politics and interests. I was there to receive him and his wife Georgina at the airport upon their arrival, and throughout his tenure, he remained my boss, father figure, and confidant. He shared with me many writing techniques: ‘use simple language, conduct yourself decently as a judge, weigh your words before you speak, and speak only if you must’. If you read any of his decisions, you too will admire his style.

What are the three most important suggestions you have for advocates submitting written and oral submissions to superior courts and the Supreme Court in particular?

The rules I expect those entering my courtroom to follow draw from simple ideals and common sense: Be respectful and courteous. Keep time and be prepared. Be honest and let your word be your bond.

Should judges use social media at all, or is the role of the judge so sacrosanct that it is inappropriate?

Judges are not celestial beings; they are human beings. Judicial status is a professional standard, not a measure of human rank. I think it is acceptable to be on social media; it is a social platform, after all, and there is no logical reason a judge shouldn’t have to use it. In other words, one shouldn’t lose their social life just because one is a judge. The only rule is to be cautious on what you say or share, both of judicial and personal nature; if it is improper, don’t do it. Importantly, steer clear of court matters because that affects perceptions of justice or justice itself.

Kenyans on social media have wondered if working with Chief Justice Martha Koome, against whom you ran for the CJ post, might strain your relationship. Is that something you wish to address?

Absolutely, and thank you for asking. I believe that our destinies are preordained — mine on the day I was born on Nov 21st, 1961, that I’d serve in the Judiciary and that in 2021 I would serve in the Supreme Court as a judge and not in any other capacity. I am content and grateful to God to serve as a judge and have assured the Chief Justice that we were not at all in competition with each other. It was indeed the Chief Justice who repeatedly assured me and I was in agreement, that between us, it was just a “friendly match”. All the ideas I wanted to implement if I’d been honoured with the position, are at her disposal, and I will do everything to ensure she succeeds, that the Supreme Court succeeds, and the Judiciary succeeds. I have invested my entire life in the Judiciary, and I’m only too happy to see it succeed.

Who are you? Forget about being a judge or a father, son, or husband; who are you?

I am a Christian who believes in what is fair and just. I am an honest man. I believe in doing right and living right by all people. I do my best to practice the best principles of my faith — love for one another as Christ loved us, which means living in service, and showing kindness, empathy and honesty.

How does a judge empathize?

Easy. Through being faithful to the rule of law. We live best when we live well with all people.

If we are sitting here, ten years from now, celebrating what a great tenure it’s been for you in your new role, what did you achieve?

I enabled access to and quality of justice, built towards efficiency and responsiveness, and resolved issues fairly and without undue delay. I’d like to be remembered for promoting a corporate view of the court’s work. I have just arrived at the scene to find judges who are introspecting and ready to listen to divergent and even new ideas. That the Court was able to dispose of all backlog and is real-time. I want to do my bit in transforming us into a world-class court.

If a movie was made about your life, what would be the narrative arc for your character?

I’d be a sword-of-justice-wielding Robinhood, speaking for the underdog.

**The full interview will run in the September print edition.