Judiciary’s scorecard on devolution

County Governments and their leaders have given practical meaning to the dictum “government by the people, for the people, and of the people”. It has yielded friendlier notions of government. Devolution has made the people see government not necessarily as “an agency of force”, but as “an agency of development”. Devolution helps make the point that government need not be ugly or fierce to qualify as government.

As we serve, we must take note of this significant leap in Kenya’s constitutional and political culture, bequeathed to us by a great Constitution. The Judiciary has been transforming and we have made significant advancement, including within the context of devolution, in spite of the fact that the Judiciary is not devolved. We have taken a citizen- centric view in executing our mandate, in the belief that the centrepiece of our service is not so much our location in the constitutional architecture, important as this is, but rather the satisfaction of the ordinary citizen in our service delivery.

There can be no denying the fact that the Judiciary has been a good partner for devolution. Both in terms of its institutional expansion, as well as its jurisprudential articulation, we have given meaning and effect to an important part of Kenya’s new constitutional and democratic formation. A few examples are germane.

First, we have expanded access to justice through the increase of judicial officers, including Kadhis, to several counties. The number of High Court stations has risen to 34 today up from the 17 that I found when I assumed office in 2011. And as a result, today, only 13 counties do not have High Court stations.

However, we intend to open High Court Sub-registries in those Counties in the short run and establish them as full stations immediately we get new judges appointed. The Judicial Service Commission is determined to post judges in all these counties within the shortest time possible. This is because every part of this country matters and denial of access to justice, even for one person, is an affront to our Constitution.

When I hear some voices protesting the establishment of High Court stations in all counties, arguing that they are “far-flung” areas, I ask the question: “far-flung from where?” The territorial integrity of this country is indivisible and there are no “far-or near-flung” areas of Kenya or Kenyans. How is it that the language of “far flung areas” never arises when it comes to Kenya Revenue Authority? If the burden of direct and indirect taxation is no respecter of distance, why should the benefit of expenditure be?

We have expanded the geographies of justice not just in the High Court but also in the Court of Appeal. We have decentralised the Court of Appeal to Malindi, Kisumu, and Nyeri – and will soon be moving to Eldoret and Nakuru. Court users who used to travel to Nairobi, or wait twice or thrice a year when the Court of Appeal was doing only week-long circuits, no longer have to do that. In fact, because of this intervention, the waiting time for the Court of Appeal in Nairobi in civil matters has reduced from about nine years when I assumed office, to three years. In the outer stations, the waiting time in some instances has reduced to less than one year. The Court of Appeal in Malindi, for example, is hearing matters real time. That is transformation. That is access to justice.

I want to thank several County Governments for their support to the Judiciary. Many, such as Busia, Meru, Nyandarua and Makueni have donated or offered to donate land. Machakos, Kajiado, Laikipia have also offered land for courthouses and facilities. We are looking forward to concluding negotiations and transfer of the properties. The Governor of Kajiado has donated 1.3 acres for construction of a High Court and also donated 1.4 acres for construction of staff houses. I am happy to announce that we have secured funding from the World Bank for the construction of one of the most magnificent court houses in Kenya for Kajiado County.

Unbeknown to many Kenyans, Court infrastructure has been in a horrible state. Infrastructural development has been a key component of our transformation. At present, we have about 100 court construction and rehabilitation projects across the counties.

Indeed, the noise you often hear from the Judiciary is not just about us fighting corruption, which is a war worth waging, it is also about the hammer and tongs of construction. Within the first three years of my term in office, we managed to complete stalled court construction buildings in Kisumu, Busia, Naivasha, Sirisia, Gatundu, Migori, Malindi. There are other construction projects on course for completion or ground breaking in Mandera, Garsen/Hola, Mpeketoni, Garissa, Eldama Ravine, Nyando, Muhoroni, Oyugis, Meru, Nkubu, Chuka, Embu, Mandera. Others are Molo, Engineer, Nyamira, Kisii, Kajiado, Kibera, Muranga, Kitui, Kangema, Hamisi, Vihiga, Bungoma, Mombasa, Marimanti, Othaya, Runyenjes, Bomet, Makindu, Kibera , Siaya, JKIA, among others.

This is what transformation is about. This work, though substantial, is not even enough and it must continue. We have secured financial support for these projects from the World Bank and the National Government but the Judiciary’s commitment in expanding the footprints of justice is not limited to brick and mortar.

It is also manifested in the number of mobile courts that has increased from 19 to 52.We are reaching more Kenyans though this service. In December last year, I waived court fees for County Governments as part of Judiciary’s support to devolution, thereby extending the litigation benefit that the National Government enjoys to County Governments as well. Further, I appointed the Taskforce on Mainstreaming Alternative Justice System chaired by Justice Prof Joel Ngugi, which, we believe, will result in a national model for Court- Annexed Mediation.

We began on a pilot basis in five Counties – Nyeri, Machakos, Isiolo, Meru, and Kericho – and have since extended to five others including Garissa, Kitui, Muranga, Lodwar and Nairobi.

The Judiciary’s has done exceptionally well in developing jurisprudence on devolution. Our courts must be commended for making judicial determinations and pronouncements that have affirmed Devolution. From the Supreme Court to several Court of Appeal and High Court decisions on a range of issues on devolution, the courts have been very articulate and courageous.

We have settled questions of Division of Revenue Bill, the mandate of County governments, laid down correct procedure for the removal of Governors, laid down the law on the transfer of health services to County Governments, clarified inter-governmental relations, settled the question of removal of members of county public service boards, enunciated the role of County Governments in the realisation of socio-economic rights, and, lately, pronounced ourselves on the classification of roads.

With this record in burgeoning case law, no one can fault the contribution of the Judiciary in providing Constitutional anchor and succour to devolution in a moment of transition, and doing it with courage, erudition and conviction. Even when we have disagreed, it has been grounded on solid legal reasoning.

In our recruitment the Judiciary has always ensured representation of the face of Kenya. In our contracts, we have given directions to contractors to use local labour and materials as much as possible. Governors must watch against new marginalisation within their own counties and ensure that all communities are represented.

As Chairman of the National Council on the Administration of Justice (NCAJ), I am proud of the commitment that the NCAJ agencies have exhibited in supporting devolution. During the Second NCAJ-CoG Annual Conference held in March, we signed a Working Document on Comprehensive Collaboration Framework between the CoG and NCAJ on the Administration of Justice within the Context of Devolution. It is the official reference point in our engagements and NCAJ agencies have expressed support for this mechanism that will help eliminate any points of friction or misunderstanding.

In brief, this is the Judiciary scorecard on devolution. I am proud of it. I hope that the record can be improved and bettered. And it cannot be if County governments are beset by corruption. And as we approach elections next year, we owe the country a democratic, peaceful and credible contest.

(Delivered by the Chief Justice at the 3rd Annual Devolution Conference held in Meru on April 20, 2016)

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