Ever since I took my oath of office on June 20, 2011, I have never been under any illusion that winning public confidence is a destination – rather I believe that it is a continuous journey.
Even at those moments when surveys have found that the Judiciary enjoyed some of the highest public approval ratings for a public institution, we have been keen to seek ways of winning the confidence of those who still found our services and attitudes unsatisfactory.
I was, therefore, surprised to read the online report in the Daily Nation (Wednesday, May 15, 2013) attributing to me remarks to the effect that the proof of Kenyans’ confidence in the court system could be found in the unanimous decision of the Supreme Court in the recent presidential petition.
Nothing could have been further from what I said. It is possible that since the reporter was not present at the meeting with Chief Judge Lippman in his Manhattan chambers, he entirely missed the context and substance of our discussions.
Going by the reactions online, this report has caused a great deal of distress to many Kenyans. I have, therefore, requested the editors of this newspaper to allow me to exercise the right of reply on this matter in order to set the record straight.
From May 13, 2013, I have been visiting the United States as part of my continuing engagement with other jurisdictions to draw lessons on how to speed up the transformation of the Judiciary launched a year ago. It has been a mutual learning experience for us as well as for our hosts.
In New York, for example, Chief Judge Lippman of Circuit of Appeals is working to bring into the mainstream of the justice system its town and village justices, many of whom are non-lawyers who have been criticised for conduct ranging from appearing drunk in court to failing to inform defendants of their right to counsel, to convicting defendants without trial. We, on the other hand, are attempting to reconcile the councils of elders, which are important in traditional Kenyan society, with the protections of our new constitution, for example, with regard to women’s rights.
Our discussions also centered on experiences in negotiating budgets with the Executive and the Legislature as an independent Judiciary.
I recall telling Chief Judge Lippman that unlike in 2007 when election contestants refused to go to court, this time round, on the basis of the confidence building work we have undertaken since 2011, there was recourse to the courts and not violence.
The closest I came to discussing the petition was to say that political questions are problematic for courts worldwide because what makes sense in law, evidence and the Constitution may not always be what makes sense politically. The Supreme Court judges and I are only too aware that the decision handed down in on March 30, 2013 may not be universally popular. We have subsequently taken steps to open spaces for it to be debated, for the benefit of all actors and interests involved not just now but also for the future.
One of the events scheduled upon my return to Kenya is the handover of all materials from the presidential election petitions to university law schools in Kenya in order to launch a robust debate and lifelong scholarly inquiry on the cases and the decisions that flowed from them.
Through this engagement, the Supreme Court, and indeed the Judiciary, will be inviting criticism of its processes and outcomes as well as evaluations and affirmations as appropriate. It is a testament to our acceptance of the principle that it is only through constant engagement that we can build public confidence in Kenya’s justice system.
Whenever the public has expressed confidence in the workings of the Judiciary, we have never seen it as an opportunity to become over-confident in our abilities or rest on our laurels. We remain eternally grateful to those Kenyans who continue to keep the faith in the ideal of the Judiciary created by the Constitution. We remain keenly aware that to those whose faith may be flagging, we have a duty to restore it in our decisions and conduct.
(Dr Mutunga is Chief Justice and President of the Supreme Court of Kenya)