During interviews for the Chief Justice post, which ended on April 24, various issues affecting the Judiciary and dispensation of justice cropped up.
As the candidates wait for the Court Appeal to decide the fate of deliberations by the Judicial Service Commission (JSC), the Nation looks back at how they handled various matters of public interest.
Justice Said Juma Chitembwe
On court orders that have seen the Executive accuse judges of judicial activism: There will always be a conflict between arms of government. The Legislature will always say that it is their work to formulate laws. The main focus is the Constitution. It is the work of the Judiciary to punch holes into laws that are unconstitutional. Sometimes judicial activism is needed to solve problems.
On corruption in the Judiciary and public perception: It is not only a perception, corruption is there. You cannot stand and say A, B, C and D are corrupt because corruption is not practised in the open. The most important thing is to accelerate the handling of these cases so that you reduce the waiting time for litigants. That way, you erode both the perception and the reality of corruption in the Judiciary. I would enhance communication from the Judiciary side. We have been doing good things that we don’t tell the public about.
On technology to enhance justice delivery: I have interacted with people in the ICT department. What we are using (e-filing system) is home-grown. The staff are not enough to handle the capacity. The (internet) bandwidth is not sufficient to handle all judges and cases. We need to recruit more staff and expand our bandwidth. I would rather hold construction of courts to enhance ICT.
On sexual offences and gender issues: It (domestic violence) is not only a Chief Justice problem because people have to be arrested and cases fast-tracked to send a message to the public. It is not that I am advocating for (lowering) the age of consent. You have to analyse what transpired. The minimum sentence ties the hands of judicial officers. The law should serve the public, a judicial officer should look at the circumstances of the case.
On disobedience of court orders, especially by other government arms: I would come up with a catalogue of orders not complied with. The only solution is negotiation. Negotiation will be my main focus.
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Prof Patricia Kameri-Mbote, Senior Counsel
On sexual offences and gender issues: When you get a position of leadership, sometimes you don’t go there as a woman. There are some things that a woman will do better. As a mother - a nurturer - some things you will do better. Domestic violence occurs within the family. Even international conventions show that dealing with infractions within the family is difficult because the family is at times protective. We need to work with other justice players, both State and non-State.
On disobedience of court orders, especially by other government arms: Once a decision is made and you give orders, there are parties who follow up on enforcement. I would talk to different arms of government to ensure the rule of law is abided by.
On technology to enhance justice delivery: We shouldn’t make justice inaccessible through technology. But it is important to use as much technology as possible to dispense justice. We can partner with organisations like the Communications Authority and the Ministry of ICT to ensure we take technology to everyone.
Dilemma of 41 judges pending appointment: I would talk to the President. As the leader of an arm of government, I would talk to the President to find out how to get this issue unstuck.
On court orders that have seen the Executive accuse judges of judicial activism: Judicial activism must be brought within confines. There have to be rules. Our Constitution is activist. I would need to work with my colleagues and see which ones (laws) we would like to pronounce ourselves on.
On corruption in the Judiciary and public perception: Perception of corruption is as bad, if not worse, than corruption itself. It is important to use internal mechanisms like the Ombudsman to work on perception. You have to use carrots and sticks to convince the Judiciary that perception is bad. I would have a process touching on whistleblowers too. Once you get one (corrupt judicial officer) and handle the case well, you will have dealt with the rotten egg and that will have dealt with the perception.
On sexual offences and gender issues: The law supports patriarchal structures. The legal structure is dominated by patriarchy. Laws are made in Parliament and the dominant gender of Parliament is male. But we have come a long way especially with the 2010 Constitution which outlawed discrimination. We need to nurture our youth. In these cases where there was no violence, like the Romeo and Juliet cases where the age difference were not huge, a slap on the wrist for the suspects is sufficient. You shouldn’t be hit with a sledge hammer yet you’re only 19 and the crime isn’t violent.
Dilemma of 41 judges pending appointment: This one must be resolved through negotiations. One major problem I see is with perception of independence and interdependence. The Judiciary and Executive are interdependent. This is not a beauty contest of who is serving Kenyans better.
On corruption in the Judiciary and public perception: I can only speak for myself. The perception out there is that we are corrupt. If there are people moving out there bribing judges and magistrates, then we have structures that can deal with that… Establishing a communications department in the Judiciary that communicates judicial decisions to the public. We have to look at the current department and their ability to interpret judicial decisions.
On court orders that have seen the Executive accuse judges of judicial activism: Compliance with court orders is critical to the rule of law. What I see as a way out is for the National Commission on Administration of Justice (Ombudsman) to have an office to deal with compliance of court orders.
On technology to enhance justice delivery: I would get strong procurement processes and monitor value for money. My vision would be to continue with the transformation already happening.
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Justice D.K. Njagi Marete
On technology to enhance justice delivery: We have to invest in technology and manpower in that sector, materials which are required. We cannot go back. Equip this place. Liaise with people like the Ministry of ICT, the Communications Authority and other stakeholders in that sector.
Dilemma of 41 judges pending appointment: The 41 judges should be here like yesterday. These are not issues that you go to court about. These are issues that you talk and resolve. In my second sitting with the Deputy Chief Justice and other commissioners we shall be talking about the 41 judges. In a week this is done, get a meeting with the President, walk down there (State House) and talk. In less than four weeks this matter is done.
On corruption in the Judiciary and public perception: Surveillance. Put effective surveillance systems. Corruption is a very personal affair. Let the Chief Justice and his officers do very strict surveillance. We cannot sit here and pretend to be doing justice when we are doing things under the table. We should be able to buy staff to our side using incentives at our disposal. When you make them happy, everything will happen.
Mr Philip Murgor, Senior Counsel
Dilemma of 41 judges pending appointment: My personal view is that the Chief Justice (Maraga) speaking on the steps a few metres away may not have been the best move. Were I to be appointed Chief Justice, I would not leave State House until I have had a fair discussion. I appreciate I may not come home with the result but that is a starting point.
On court orders that have seen the Executive accuse judges of judicial activism: I do not subscribe to extreme judicial activism and at the same time I do not subscribe to total restraint and conservative interpretation of the Constitution. I subscribe to the philosophy where it is clear there is room for purposive interpretation.
On corruption in the Judiciary and public perception: It’s time for all arms of government to recognise that graft is a national crisis and deal with it. But this requires collaboration with the entire government. We need someone courageous enough to get rid of the cartels that are stalking the halls of justice. The brokers for justice. They are all billionaires. They don’t even charge legal fees, they are lawyers most of them, they charge brokerage fees. Cartels move on when they can no longer feast. The EACC will watch and when evidence is found they will be prosecuted.
On sexual offences and gender issues: I will always take a position on people who bully and take possession of other people’s property. I will fight for a woman, a widow, a girl anytime. For free.
On technology to enhance justice delivery: I see digitisation being the way forward. The pilot projects, I have examined them. They are all good. Like the one in the commercial court (digitised recording of court proceedings), but they are all just pilot projects. We need to roll them out so that the entire process, end to end, is within the programme.
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Justice Mathews Nduma Nderi
On technology to enhance justice delivery: What will unlock the potential of this country is technology. The e-filing system and others. If I can automate all courts within five years, and I am passionate about that, then access to justice will be achieved.
On court orders that have seen the Executive accuse judges of judicial activism: A court order must be obeyed whether the affected party agrees with it or not. To do otherwise would lead to anarchy.
On corruption in the Judiciary and public perception: I was astounded because the satisfaction levels are so high. I don’t understand where the perception is coming from. Unless the (satisfactory justice delivery) survey was badly done. Given that, a one per cent corruption level is not acceptable in the Judiciary.
On sexual offences and gender issues: I am very passionate about mothers and girls. As Chief Justice, all I will do is to implement our Constitution. We have a beautiful Constitution. Sitting with my colleagues, we should be able to do groundbreaking development of the law in areas that impact our children, our mothers, the boy child who is now under siege, and persons living with disability.
Mr Fred Ngatia, Senior Counsel
On corruption in the Judiciary and public perception: The talk about corruption in the Judiciary is at two levels. There is corruption at the registry level which to me is very insidious because it is there and you cannot see it. One way of getting rid of that is using e-filing. By e-filing you eliminate that kind of corruption. But you need audit systems so that there are no enterprising Kenyans getting into that money. Judicial officers… that is the area I would like to deal with efficiently. Inculcate ethical values in them and the more we do this the more we get out of the perception of corruption.
Dilemma of 41 judges pending appointment: A discussion would be the best. I need all hands on deck, without this it will fail. It is not benevolence you’re looking for. It is an understanding that the Judiciary does not exist for itself. It exists for the people of Kenya. Approaching it from this understanding, I do not see myself being unable to have a dialogue because I am not doing this for self but for the people of Kenya.
On gender: If I was in a position to appoint a Chief Justice it would be on merit and not on the gender basis. It is the legal mind that is needed.
On technology to enhance justice delivery: The more we use the tools I am proposing, where you can see that a judicial officer went to court on this date at this time, did this case and this was his decision, you are able to look at that decision within the necessary parameters and see whether it is within the law. It is not enough to have many courthouses and many judges. What we need now is expeditious handling of court cases. It is painful to hear of cases going on for 10 years.
On court orders that have seen the Executive accuse judges of judicial activism: Let every judge understand what is within our mandate and that is quite easy, we have brilliant judges. Let us not have activism in Judiciary which can therefore mean we start having unnecessary attacks from other arms of government.
Dilemma of 41 judges pending appointment: I admit to the public that this is one area where we have not performed very well on account of numbers.
On technology to enhance justice delivery: The retired Chief Justice did a good job with the e-filing system. We just need to enhance it. All judiciaries that have progressed saw the potential of computerisation and implemented it.
On corruption in the Judiciary: Corruption is like night-running. No night-runner runs during the day. And it takes two to tango. The Ombudsman's office is there ... it is the office we must take seriously. Wealth declaration forms … nobody checks if the car you said you own in 2009 is the same one you use. We will be pragmatic ... we will encourage everyone to serve, and to serve with dignity. If you don’t want public scrutiny ... if you have things to hide ... then don’t apply for public office.
On resolving Judiciary problems: We have reached a time when there are too many reports. What we need now is implementation of these reports. I do not think, from where I sit, that we have been focused in implementation. We have been focused on generating more and more work, replicating what has been done before.
On corruption in the Judiciary: I cannot really talk about corruption in the Judiciary because I do not know it. I have been practising in the courts for a long time and I cannot talk of an incident where a matter was decided based on some element of corruption. But if there is, one of the ways I would propose we deal with it is to have a continuous discussion on why it should not be there.
On image of Judiciary: I would make ... information about the Judiciary known and make people able to associate with it. I would bring musicians. Let them compose songs on delayed judgments, disobedience of court orders [and other matters].
On court orders that have seen the Executive accuse judges of judicial activism: The Constitution is very clear in creating three arms of government with distinct functions. When we talk of separation of powers there must be a separation of functions, persons and powers. The Judiciary must focus on what it is supposed to do. Judiciary cannot legislate.
On technology to enhance justice delivery: In the digital payment system that I developed, that (blockchain technology) is the concept.
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Dilemma of 41 judges pending appointment: Next to me (in the JSC) sits the Attorney General. I would start there. I would sit with him and other members of the commission and discuss. Where is the problem? Let us come up with the way forward. If the way forward is to meet with the President, then let us do it.
On sexual offences and gender issues: (If an employee victim to sexual harassment wants to call a press conference) Calling for the press conference in my mind, is it trying to solve this problem or escalate it. My best is to advice the person who has been harassed, let us exhaust what we have in the code of conduct. Can we follow the code of conduct and forget the press conference?
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On technology to enhance justice delivery: When we file using ICT, your filing goes through very fast. Tracking is very important. It will be easy, just at the touch of a button the magistrate or judge will know. This matter has taken long. Can it be allocated a date urgently?
On corruption in the Judiciary: There is so much that the Judiciary has done that is good. But to be shrouded with that veil of corruption ... let it [be known] that the Judiciary is not as corrupt. You can do the annual communication. Can a website be created for the public to know what is happening? Using service week, can what we are doing be communicated to the public. Then [the next goal should be] to clear the backlog because that is where part of the perception comes from.
