BY WILLY MUTUNGA
Let me begin by expressing my sincere gratitude to the National Council of Administration of Justice (NCAJ), the Commercial & Admiralty Division led by Justice Fred Ochieng, the Kenya Association of Manufacturers (KAM), and the team working alongside them, for conceiving the idea, that there is need to have a Court Users Committee (CuC) involving stakeholders in the Business Community. CuCs are part of the Judiciary transformation program and they are designed as an accountability forum for better service delivery. I urge all private sector organizations throughout the country to join CuCs within their areas of operations and help hold all actors in the justice chain accountable for their activities.
Indeed the Commercial Court was borne out of a big outcry from bankers and the investors who had increasingly become frustrated for the reason that debt recovery and enforcement of contracts was a time consuming process within the Kenyan Justice System. The establishment of the Milimani Commercial Court in Nairobi in 1996 was informed by the need to expedite the resolution of Commercial disputes including realization of collateral.
The court was established in response to inadequacies experienced in the general set up of the court system. The general court system was congested and lacked adequate facilities thereby adversely affecting the dispensation of justice as would be commensurate with the demands of an increasingly fast changing economic environment in Kenya.
The Commercial Court is therefore a pivotal link between the rule of law and economic development. It is the arena where this interface is most direct. A country whose judicial system enforces contracts, respects property rights, operates with integrity helps attract investments, which result in better employment outcomes and even higher revenue yields for government. A clean and functional Judiciary is both good politics and good economics and we should all invest in it, hence this launch today.
The recognition of the critical role that the Judiciary plays in transforming societies is what has guided our judiciary transformation program that we launched in 2012. We embarked on an ambitious program, which has both structural and cultural elements. Ours was, in many respects, a byzantine institution, and the construction work on-site, has the common manifestations of such sites – progress, yes, but also substantial dust that obscures the upcoming building.
We have covered significant ground but also faced many challenges. We have received support but have also been victims of attacks from vested interests, some of whom had privatized the Judiciary and its staff. We have fought corruption both in the Bench and the administrative wings of the institution – and continue to do so. We have increased the number of judicial officers; invested heavily in infrastructure; introduced performance contracting; created a public complaints mechanism; simplified rules and procedures to quicken the pace of litigation among many other things. It is important that the business community supports these efforts, and particularly the fight against corruption on the Bench, in which some sections of the private sector and their advocates are active participants and reverse complainants.
The private sector must stand up to be counted in this fight, and an important marker in this regard, would be for the business community to tell the country what it has done to those of its members who supply goods and services to government agencies at mind-boggling and inflated prices. The private sector cannot remain mute in the face of massive corruption where its members are involved. When grotesque prices are given for any item, we cannot simply claim that the tendering process was open, and that there was competition, and that the Tender Committee awarded the ‘best or lowest’. Free market is supposed to realize a more efficient allocation of resources but not to provide cover for abuse of those resources through corruption. So the private sector must call on government agencies to account but this call will not be complete until it also calls out corrupt members within its own ranks – publicly.
Since 2011, the Judiciary has made efforts at improving on the delivery capacity and operations of the Commercial Court. I have increased the capacity of that Division from three judges to six judges. Last year, I issued Practice Directions that are intended to simplify the rules of procedure of the commercial court. These rules have reduced the length of litigation significantly – in some instances from the previous three days to two hours. Indeed, this has reduced backlog and, hopefully, reduced your legal fees, as lawyers should be charging you for fewer days. In October, through Legal Notice No. 197, we gazetted the Court-Mandated Mediation Rules, which, again, will keep out some of the commercial disputes out of court.
And in line with the Judiciary Transformation Framework, on Harnessing Technology as an enabler for Justice, the actualization of the long overdue digitization of court proceedings will be rolled out in the Commercial & Admiralty Division in January 2015. The intention being that Judges will no longer write proceedings longhand and proceedings will be available 24 hours after the court rises. The Judiciary Audio visual and Transcription system (JAVIT) will promote better administration of Justice and delivery of quality legal services to Court Users.
To deal with backlog, I launched the Justice @Last: Old Cases Clearance Initiative, which has been carried out successfully in 10 High Court Stations. The Initiative led to the conclusion of 1003 cases in the Commercial & Admiralty Division.
The gains made in the Justice @Last; Old Cases Clearance Initiative to clear courts of case backlog has to be sustained by continuous improvements in the Registry System. To this end, the Commercial & Admiralty Registry is putting in place a systematic way of retrieving concluded files to the archives, entering case results in registers and only leave active records that have dates for either mention, hearing or other court action. On this note, I am happy to inform you that the Commercial & Admiralty Division is rolling out the use of Electronic Court Diary to ensure that all active cases have dates and there are no instances of diary closure.
On the conclusion of this phase of Justice @Last Initiative all case data will be up to date and accurate, all registered files will be accounted for, all ephemeral records will be disposed off hence creating room for only active records. No case will be in the registry without date.
The electronic court diary will be operational and will enable dates be issued on a continuous basis all year round and an automated cause list generated by the system on demand. That is what Judiciary Transformation is about – a slow but steady turning around of a ship tanker. Make no mistake: these reforms hurt certain powerful interests, but we must continue undeterred. There is a vast community of private interests for whom disorder works.
The private sector, when responsible, is an important player in the socio-economic development of any country in a sustainable way. But a private sector that has a racketeer mentality can be dangerous both to the economy and to a fledging democracy such as ours. That has been the experience in Africa where the extractive industry is dominant – where contracts and deals are drawn and done in dark places, and regimes sustained by excessive capital from the extractive sector, cease to be accountable. The strong correlation between natural resource endowment and civil war in Africa is too strong and it contributes to the democratic decline and developmental deficit in many countries. The private sector needs to be invested in the building of democratic societies where the rule of law flourishes both as a matter of selfish interest and on its own merit.
The glitter of profit per se is not an indicator of development but rather it is the totality of human development as measured through its well-known indicators. There is no country, democratic or dictatorial, where the private sector fails to make money. But it is money made in a democratic society that enjoys the comfort and certainty of its survival and regeneration. Just ask the Russian Oligarchs. Racketeer capitalism in the West is also what led to the financial meltdown of 2008.
A racketeer mentality private sector also manifests itself in the illicit trade phenomenon – a very dangerous trade that kills legitimate businesses, undermines intellectual property, finances terrorism, corrupts electoral processes, hurt public health, and undermine public finance through dodgy taxation practices. These ‘termites’, unfortunately, capture law enforcement agencies and both the proper business community and state agencies have a duty to deal with this menace. It is the reason the Judiciary and the National Council on the Administration of Justice (NCAJ) have partnered with the Kenya Association of Manufacturers (KAM) to combat this problem through a series of ongoing interventions. It is the reason why the International and Organized Crimes Division of the High Court envisaged by the Judicial Service Commission has identified trade in counterfeit goods as one of the issues it shall be dealing with.
The future of this country, and the security of your investment will be determined by the attention we pay to defending and protecting the Constitution that Kenya has. The Constitution has significantly reduced opportunities for patronage, and, in Article 40, has strongly affirmed property rights. But in so doing it has also raised the bar for the way in which business should operate. The emphasis it places on public participation in legislation, and its provisions that enhance public right and disclosure of information has rendered obsolete the past practice of bureaucrats and business secretly getting into deals.
Speech delivered by CJ at the launch of Business Court Users Committee in Nairobi last month
