In this book, Professor Gathii argues that “[f]or decades, the Kenyan judiciary was characterized by subservience to the President, corruption, mechanical jurisprudence and innumerable delays. Today, the judiciary is well on the way to fundamental reform. Institutionally, the judiciary is no longer regarded as a small department within the structure of government, but as an independent and co-equal arm of the Government.” This is perhaps the greatest legacy I will leave after completing a short but intense tenure as the first Chief Justice of the Judiciary of the Republic of Kenya and the President of the Supreme Court under the 2010 Constitution.
The absence of an independent judiciary was a critical factor in Kenya’s degeneration into bloody, Post-election violence after the December 2007 General Elections. In this book, Prof James Thuo Gathii, one of Kenya’s leading legal scholars, and the Wing-Tat Lee Chair of International Law and Professor of Law at Loyola University Chicago School of Law, traces Judicial Transformation, in part, to the reforms put in place to avoid future violence. In so doing, the book engages in a detailed analysis of the key aspects and strategic decisions that led to the beginning of a deep and thorough process of Judicial Transformation. Prof Gathii reveals, in these pages, the knowledge of a true Kenyan who also leverages his insightful international, comparative and theoretical expertise.
Prof Gathii demonstrates that Kenya’s judicial empowerment was not the result of a-priori political will by the political and economic elites. Rather, it was the result of unexpected circumstances triggered by violence following the December 2007 General Elections. That violence, and the peace making process that followed, raptured the elite’s resistance to a progressive Constitution. Any reform process is bound to create a certain amount of discomfort among agents of corruption as well as among unaccountable political and economic cartels. Indeed as Professor Gathii argues, “the fact that the empowerment of the Judiciary subsequently came under attack particularly from Parliament shows that even when reforms take place, they do not lock political actors in place. Rather, the rough and tumble of politics continues to contest reforms. Those who support reforms must remain vigilant. That is why historical institutionalism best accounts for the rise of the Judiciary’s empowerment in Kenya – historical institutionalism argues that change occurs episodically rather than incrementally as it has in Kenya’s Judiciary. In addition, consistent with historical institutionalist accounts, the changes in the judiciary are being contested both from within and from outside the Judiciary.”
As Prof Gathii argues, the Judiciary has used its increased budgetary appropriations to recruit talented Judges, Magistrates and staff to dispense justice effectively and efficiently. The Judiciary also revamped its judicial appointment process so that we could hire talent from the private sector, academia and the civil society and from both inside and outside the country. Such reforms have characterized the Judicial Transformation process that Kenyans expected when they overwhelmingly voted to promulgate the 2010 Constitution.
The Presidential Election petition brought before the Supreme Court in 2013 was, perhaps, one of the greatest trials in the Transformation of the Judiciary. That case tested the gold for its purity and genuineness and it made the country deeply aware of the importance of having an independent, resilient and honest judicial system. This high stakes case decided in a pressure-cooker atmosphere validated the importance of an objective and independent justice system. There was expectation that the Supreme Court would upend the result of the 2013 election and when this did not happen, it became a major source of disenchantment.
Indeed, the process of Transforming the Judiciary has been contested from both within and without the judiciary. That process is by no means fully accomplished. There is no pretending that the work of Transforming the Kenyan Judiciary has been completed. That would be naïve and dishonest. Transforming the Judiciary, an institution so big, complex and expansive, and an institution so historically neglected yet one whose Transformation threatens so many vested interests, has been like turning a ship tanker not a speed boat. The work continues. That metaphor is what Transformation from the margins is all about.”
The legacy I leave behind is just the beginning of a process that has laid a firm foundation upon which future Chief Justices can build. It is extremely gratifying to see that many of the Judges and judicial officers who could not contemplate the potential of Transformation, are now among the greatest supporters of this process. Certainly, the challenges are many, and new ones are already emerging in the horizon. The Judiciary’s independence, excellent and consistent jurisprudence, access to justice and openness to new legal realities will be some of the greatest challenges my successor will have to deal with.
I am grateful to Prof James Thuo Gathii for inviting me to write this foreword to this book that analyses an essential part of the history of our Judicial Transformation. I challenge other Kenyans to do so too. I hope that the future Chief Justices of Kenya will continue to build a competent, expeditious, transparent, honest and fair Judiciary.
Dr Willy Mutunga, D. Jur. SC; EGH
Chief Justice and President of the Supreme Court of Kenya
Nairobi, June 2016.