Colleagues and Friends of the Judiciary, Good Morning
Welcome
You are all my colleagues. I am very proud to see you.
Welcome to a transformative Judiciary. You are an
important component of this transformation. You should
be proud of the fact that you constitute the very first
generation of legal researchers in the history of the
Kenyan Judiciary! But this place of pride comes with its
responsibilities: as trail blazers, the standards of legal
research, the bar for personal and professional conduct
that you set will have far reaching implications for the
future generation of researchers – and the Judiciary. So,
as founding mothers and fathers of legal research in
Kenya, you must discover your mission and either choose
to fulfill it or betray it. If we see improved quality in legal
decisions and opinions, then we shall conclude that those
opinions and decisions are the imprimatur of your
versatile and creative legal minds. If we see the opposite,
it will be natural evidence that the legal researchers in
Kenya have lowered the quality of jurisprudence in the
country. You shall have betrayed the mission. Make your
choice.
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Some Critical Reading Material
You will be given three documents that will give you part
of the orientation of the institution you have just joined.
These documents are two papers I have read that
address the critical issue of a robust, indigenous, patriotic
and progressive jurisprudence that is pegged to our
progressive constitution. The elements of the
jurisprudence we intend to create are discussed. I need
to add that the question that I am yet to address in detail
is how this jurisprudence will be related to the
establishment of special courts that have the status of
the High Court, namely, the Employment and Labor
Relations Courts and the Land and Environment Courts.
What I can say at this stage is that these courts, within
the rubric of the jurisprudence I have articulated, will
mitigate the relations of production in Kenya in the land
and production sectors to achieve the vision of the
constitution. This vision is clearly one that decrees that
Kenya builds a social democratic economy and a basis of
its sustainable and democratic development. The focal
point will be the constitution with progressive common
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law and statute law being interpreted to reinforce that
vision.
The third document is our Judiciary Transformation
Framework launched on May 31, 2012. You must read
this blueprint. Your loyalty to the transformative judiciary
will be judged by your loyalty to the constitution and this
framework
I want you to start analyzing these critical readings and
give us comments after you have thought through them,
conference, and carried out necessary research on the
issues raised. I recall it was Mao Zedong who advised
that if one has not investigated an issue, one has no right
to be speak or be heard! This is your first assignment as
Research fellows in the Judiciary. You will hand in your
comments when you are ready to Professor Joel Ngugi,
the Head of Transformation Secretariat. This may be the
time for you to form study groups so that you can work
collectively and develop the culture of collegiality and
collective intellect.
In one of my papers I discuss briefly your role in the
creation of the jurisprudence I have referred to. I am
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sure this is a challenge you will take seriously the hurdles
put along your way notwithstanding.
In one of my papers I also address in some detail our
vision of the Judiciary Training Institute hosting this
induction course. It is our institution of higher learning,
training, brainstorming, and the nerve centre of our
progressive jurisprudence. I advise you to have keen
interest on what goes on at JTI and offer your expertise
and intellectual talents to this institute.
Career Paths
Your positions as Legal Researcher launch you in a career
trajectory that has numerous cross-roads two of which
are prominent. You may want to pursue an academic
career or a career in the Judiciary. Your position will
prepare you for all these various options. I am sure those
who excel will find opportunities for further learning
here or abroad. You are definitely going to be taken
through a culture of thinking, reading and researching in
a historical, socio-economic, cultural, and political
contexts of not only Kenya, but also the Eastern Africa
region, Africa and the world at large. We will make you
take your Social Foundations of Law seriously! We will
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also allow you to pick areas of specialization and interest
so that you can broaden and deepen your knowledge of
these areas. In my view our constitution shuns staunch
positivism. You will, therefore, historicize, interrogate,
and problematize the various schools of jurisprudence in
search of the jurisprudence we have to create. I have in
the papers indicated how we need to regard foreign
jurisprudence. While we will still study it we will do that
within our contexts and needs. We intend our
jurisprudence, based on the most progressive
constitution in the world to be one to be exported to the
rest of the world as a beacon of the change we must
have in the world.
At the end of the day, all you will have to ask yourself is
how and to what extent you have contributed to a
judgment that has become highly acclaimed in the
country, the region and the world. Did you play a pivotal
role in the export of our progressive jurisprudence?
Relations with Judges
I have no idea how judges will relate to research fellows.
You are the initial guinea pigs. I have taken this
opportunity to give some of the ingredients of the role
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you are supposed to play. You may use my authority on
what you are supposed to do to resist any oppression
that comes your way! Judges are not your pupil masters
but your colleagues. They are your mentors, but you
should also mentor them. I expect mutual respect in your
relationships with judges. The judges will initially lay
down the perimeters of this relationship, but it is a
relationship that will be negotiated and that is based as I
have said on the loyalty to the constitution, the Judiciary
and its JTF. You must occasionally share your experiences
on how you are being treated. Some judges I am sure will
go to the extent of allowing you to draft decisions for
their perusal. Others will be horrified that you should be
allowed such leeway. We will end finding a great balance
that is bigger than all of us; and that is loyal to our
progressive jurisprudence.
Despite the job title, your work as Legal Researchers is
more than researching. Depending on the judge you will
be working with, it will include a broad range of duties
including preparing the judge for the case including
preparing bench memos; managing the judge’s docket;
researching and writing memos on specific aspects of
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cases; handling correspondence; and drafting orders and
opinions; and verifying citations.
Let me also tell you what you are not! You are not Judges
or Assistant Judges. The analytical rigor, rationale and
soundness of judgment squarely remain the
responsibility of the Judge to whom you will be attached.
Your role is to add value to the work of a Judge as a
researcher by filling research gaps a judge would not
normally, owing to the heavy schedule of work,
comprehensively attend to.
You are not Personal Assistants to the Judges you will
attend to. Your remit is not to attend to the personal or
extra judicial requirement/needs of a judge to whom you
will be attached. Your work is strictly professional and
research related. The non-research related needs of a
judge at work are the sole responsibility of my office and
that of the Chief Registrar. In this regard, and perhaps to
put it crudely, you are not briefcase carriers for judges.
You are the locators, sifters, synthesizers, and analysts of
intellectual, jurisprudential, constitutional, and legal
literature and judicial authorities as instructed by the
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judges. Of these latter, (literature
authorities) you are definitely carriers.
and
judicial
You will be availed the Judicial Code of Conduct and
Ethics and you must comply with its letter and spirit.
Sexual harassment must be reported as soon as it occurs.
The Code, Articles 10 and 232, and Chapter 6 of the
Constitution are clear on the values that we must exhibit
and reflect. There are clear consequences for violations
of the values. It is important to internalize these values,
live by them and holding colleagues to account on their
basis. This is another area the Judiciary could be the
teachers of the entire country, a beacon for integrity and
leadership that this country sorely craves for.
Divisions in the Judiciary
It is common knowledge that the Judiciary has divisions
based on ethnicity, nepotism, religion, race, region,
gender and generation. I hope you have not been
recruited to any of these groups. I have sworn to
dismantle these divisions and I definitely shall. Our
institution must teach other institutions in our society
what the constitution decrees about nationhood and our
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progressive diversities. Judicial reform is about societal
reform and we must not lose sight of this objective.
The Youth are in control
For those of you who are youths you will soon find out
that the youth are in control of vital pillars of judicial
reform. Let us know what you can do better and you will
be encouraged to grow, to be innovative, inventive and
proactive. The Judiciary is now a hotbed of creation of
new knowledge through rigorous critique of the pillars of
the status quo. There will be resistance no doubt, but I
am convinced the options for us are either we transform
or perish.
Coordination
We are still thinking through how we will coordinate your
critical roles in the judiciary. The Supreme Court will soon
be recruiting clerks so those of you who will work with
the Supreme Court will work closely with our clerks. The
Supreme Court will coordinate the activities of our clerks
and research fellows collectively. The other courts will
discuss the issue. You will definitely be consulted. I urge
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you to think through what effective coordination will
look like.
As legal researchers for judges, you will be required to
conduct yourselves with uttermost professionalism and
confidence. You must resist the temptation to leak
pending judgments, or lines of inquiries, or decisions
before they are delivered. Trust and confidence are the
soul of being a legal researcher for a judge. We shall treat
very harshly- and in fact criminalize- these tendencies
that undermine not just the trust among colleagues but
also the Rule of Law.
National Council on Law Reporting
Judge Professor JacktonBomaOjwang, Judge of the
Supreme Court will talk to you about your roles in
reporting decisions by your judges that will ultimately be
carried in our Law Reports. The CEO of the Council will
also talk to you about this critical role you must play. This
role is of course linked to the creation of our progressive
jurisprudence.
Ruthless criticism
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Finally, I want to tell you that some of us come from a
tradition where ruthless criticism is glorified. Speaking
for myself I will be delighted to get comments on the
speeches, think-pieces, newspaper articles that I have
authored. We have a vision for a transformative Judiciary
that must be critiqued if we are to move forward with
our transformation. If you shed your fears of academic
terrorism of the Universities, surely you must be able to
confront judicial terrorism of ideas!
Thank you.
Dr. Willy Mutunga, D.Jur, SC, EGH
Chief Justice & President of the Supreme Court of Kenya
Utalii Hotel, Thika Highway, Nairobi
June 25, 2011.
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