“We Shall Respect, But We Shall Revisit” — The State of the Judiciary in Kenya.

David K Maraga, Jan 11th 2021

Bwana David Kenani Maraga left the office of the Chief Justice on 11th January 2021 after four years and three months in charge of the Judiciary. His Deputy, Hon. Philomena Mwilu, was then sworn in as the acting Chief Justice. This would make her Kenya’s first female Chief Justice although she holds the office in an acting capacity. Mr. Maraga has, during his tenure, seen a number of criticisms levelled against him but just as well, he has seen a number of positives brought about because of his leadership.

One of the most spoken of criticisms against the judiciary led by Mr. Maraga was back in 2017 when the Supreme Court was dubbed a court of ‘wakora’ (crooks). This was following the landmark 2017 election petition decision in which the presidential elections were overturned. It was in fact this decision that led the country’s president to promise a revisit on the Judiciary, “We shall respect, but we shall revisit.” Although the label of ‘Wakora’ has largely been characterized as politicized rhetoric, maybe our Judiciary really could be made up of ‘Wakora’. Under the Maraga administration, the Judiciary has been said to be rampant with corruption.

As the outgoing Chief Justice leaves office, there are rumours of a Supreme Court judge who pocketed Kshs. 220 million from one party in a case so as to rule in their favour. The rumour then goes on to say that the judge went ahead and pocketed a similar amount from the opposing party so as to again render a verdict in their favour. In whose favour he rendered his judgement we are yet to know. How true these rumours are is still a matter of public debate, but if this is the state our judiciary is in, then what a deplorable state it is.

The Judiciary has also been criticised of tribalism, with several court stations having staff members from one tribe. This makes it difficult for anyone outside their tribe to receive efficient service, and also hinders the development goals of the Judiciary.

Further, the staff in many court stations have been criticised for lacking discipline, and for being lax and lethargic when undertaking their duties. This has led to the wheels of justice grinding slowly and worse still, the denial of justice to some parties. Cases take too long to finalize, and in some instances, it is actually the judges who are at fault for they take too long to write and deliver judgements. This is not a sustainable state of our Kenyan Judiciary. Justice has to be done, and it has to be seen to be done.

Another criticism levelled against the Maraga Administration is its failure to formulate and implement a sexual harassment policy in the Judiciary. Cases of sexual harassment are on the rise within and without the Judiciary. Thus, it is only prudent that the body which adjudicates these cases protects its own staff from harassment. Failure to implement a sexual harassment policy is a big failure on the part of the outgoing Chief Justice.

But it is not all gloom for Mr. Maraga, his tenure has seen a number of positive changes brought about. Some of the positive changes include the opening of new court stations, such as the recently opened High Court stations in Isiolo and Kwale, and the upgrading of old stations. This is so as to realize the dream of the Judiciary of having at least one High Court in every county. Currently there are 43 High Court stations in 42 counties.

Another important stride that the Judiciary has made under the Maraga administration is the introduction of e-filing i.e the filing and service of court documents electronically. This is in line with the Judiciary blueprint launched in 2017, ‘Sustaining Judicial Transformation,’ that has ‘Digital Strategy’ as one of its five key pillars. Although the e-filing system is yet to be fully effective, and although its implementation may have initially been rushed due to the corona pandemic, it is still a step in the right direction and it is still a positive change brought about during the Maraga era.

As a human being, the outgoing Chief Justice could hardly be faulted. He is known as a man who strongly believes in, and strongly stands by, his religious principles. This is the case so much so, that the fact he is a member of the SDA Community is a fact of public notoriety. Okiya Omtatah, the activist, recently lauded the outgoing CJ in an interview held on Citizen Tv. This goes to show that he was indeed a good man.

It is important as a country that we first deal with the crippling issues that may hold back the Judiciary so that we may forge ahead on a steady footing. Recently, Ahmednasir Abdillahi SC took to Twitter highlighting some recommendations that he would give the incoming Chief Justice concerning the Judiciary. He called the Twitter thread the Agenda for Kenya’s Next CJ. Some of the recommendations given include:

i. Addressing the corruption and lethargy in our courts

ii. Appointment of a third woman to the Supreme Court so as to make the ratio 4:3

iii. Establishing and adopting a workplace sexual harassment policy

iv. Digitization of ALL courts

v. Establishing a Judiciary day, being a day of workshops, debate and reflection; among other recommendations.

Notably, the Chief Justice in Kenya is the president of the Supreme Court, and of the Judiciary as whole. Consequently, he/she is in charge of the judiciary, and of ensuring that its objectives are realized. Although currently there exists no statutory provision for the same I believe the Chief Justice ought to give a State of the Judiciary address every year, just as the President of the Republic gives a State of the Nation address.

The President’s State of the Nation address highlights among others the measures taken and the progress achieved in the realisation of national values referred to in Article 10 of the Constitution. The Chief Justice’s State of the Judiciary address would therefore highlight the measures taken and the progress achieved in the realisation of the Judiciary’s objectives.

The Judiciary may currently not be in the best state it could be, but the outgoing CJ did his best to improve the institution. He increasingly fought for the rule of law in the country, he increased the reach of the Judiciary and improved on access to justice by opening new court stations, he brought about digital transformation in the Judiciary with the introduction of e-filing, and he also greatly tried to improve on the work that the former Chief Justice had started.

His tenure has however been marred by increasing grumbles of corruption, by indiscipline and laxity among Judiciary staff, by tribalism in court stations, by interference in court cases, and by the lack of a sexual harassment policy in the judiciary among other issues. The incoming Chief Justice has to do their best to overcome these issues when they take up office.

Loya. Certified Secretary (K). I’m not sure what else is supposed to go here but I enjoy writing.