Ouko promises to restore public confidence in Judiciary

Court of Appeal president William Ouko yesterday promised to restore public confidence in the Judiciary through speedy resolution of disputes if appointed Chief Justice.

He cited speedy resolution of cases, addressing the issue of injunctive orders by courts among others as some of the matters he would prioritise.

In order to achieve the goal of speedy disposal of cases, Ouko said he will take advantage of the ongoing digitisation of the court system, appoint commissioners of assize to come hear cases to reduce backlog that has clogged the justice system. He will also encourage use of alternative dispute resolution mechanisms.

He was speaking during the interview for the position of CJ yesterday conducted by the Judicial Service Commission.

Justice Ouko also raised concern over injunctive orders given by courts in absence of one party which he said should not be done unless it is extremely necessary.

“It is something that we need to change and look at together as a family. I'm not saying you cannot issue ex parte orders, there are situations that call for that but when it is given willy nilly, that raises concerns. It’s a problem that concerns even the investors too,” he said.

The government has often complained about those injunctive orders saying it is being abused and has in a way tied the hands of the state as people obtain them to halt development projects.

Ouko said the Court of Appeal where he is the president has suffered the most over the delayed swearing-in of the 41 judges.

He told the JSC panel that the number of judges in his court has reduced to 15 following the retirement of some and death of one.

He said this is despite the fact that his court has to sit as a bench of three judges for every case and they feel the weight.

To address the issue, Ouko said he will go back to JSC to find out where the problem is.

“There ought to be a way out. I will come up to the JSC and retrace our steps and find out where the rain started beating us," he said.

Depending on what he gets from the JSC and on what it thinks, he will take the grievance to the head of state, he said.

“As head of the Judiciary, the CJ has some structured channels with the President and if there is none, it will be for me to develop one. The government has three legs like an African stool and if one is short, one cannot sit comfortably on that stool,” he said.

On the issue of the Supreme Court facing criticism of issuing decisions which to some have flung open doors on the jurisdiction of that court, Ouko said criticism is good and should be taken seriously and addressed.

If appointed CJ, Ouko pledged to bring together the judges of the Supreme Court and look at the decisions where they have faced criticisms and invite scholars for reflection on the same.

“The Supreme Court is so important to this nation and we must ask judges in that court to take these criticisms seriously because institutions are run down when they bury their heads in the sand,” he said.

Ouko said the famous Muruatetu case has brought about confusion in the Judiciary.

He agreed with commissioner Justice Mohamed Warsame that after the Supreme Court ruling on the death penalty, judges and magistrates have misused the said ruling.

The case dealt with the circumstances surrounding the death penalty but the Supreme Court gave a rider that the ruling was to be applied to Muruatetu and Mwangi only.

Ouko said what has brought about the confusion was the paragraph that said you cannot take away the discretionary power of the judge in sentencing but the court also said the AG should put a framework in place for future sentencing in these capital offences.

He said in his opinion, people waited for the AG to bring a framework and decided to take matters into their own hands by using the judgement in sentencing.

"The Supreme Court did not finish their job and if you give me an opportunity to be CJ, I will mention the matter so that we can deal with the issue and the AG will come to update the court on the progress of the framework," he said.

He was put on the spot over his two presidential awards that he received in consecutive years of 2019 and 2020.

Justice Ouko is one of the 10 shortlisted candidates for the position of Chief Justice. 

JSC commissioner Olive Mugenda wanted to know if he received the awards because he was a member of the honours committee.

The judge told the panel he was indeed a member of the honours committee that was chaired by former CJ David Maraga.

He said their work was to recommend those to be given awards but he does not know how they choose the final awardees.

On how he got the two awards in two years, he told the commission that after he got the 2019 award, they realised that he had been given a lower-level award so they applied for the higher rank which he got.

"I don't know how each unit identifies who to nominate for the award," he said.

Acting CJ Philomena Mwilu also took up the matter saying his fellow judges were complaining that the process was not fair.

She said there were murmurs among the judicial officers on the issue.

Mwilu clarified that Justice Maraga never chaired those committee meetings but it was in fact judge Ouko who chaired them.

Ouko confirmed that indeed the former CJ asked him to chair those meetings on his behalf for the two sessions they had.

He said he is aware there are murmurs on the process and admitted lack of transparency. "In the future, mechanisms should be put in place for transparency," Ouko said.

On Monday during his interview, Labour Court Judge Nduma Nderi raised concern on how some judges and magistrates get the presidential awards, leaving out others.

He said the process is not very clear to judicial officers on how their colleagues are selected.

On abortion, Ouko said that is a tricky question because his views maybe used against him if he is appointed Chief Justice.

He said for now he will stick with the Constitution which says abortion is illegal unless the life of the mother is threatened.

Justice Ouko said he was also a police reservist.

However he said there was no conflict of interest because his role was to train the police and he was never involved in arresting or carrying guns.

He remembered how he lost his brother in criminal circumstances and the suspect was set free leading to his father pushing him to be a police officer.

"I later joined the force to satisfy my late dad's dream, my role was to train on use of guns," he said.

He is also the first candidate whose wealth declarations were all satisfactory  including being cleared by all state agencies including EACC and  KRA.

On corruption, the judge said that it operates at night more like night runners who don't run during the day.

"We also must be able to have corruption addressed without the Judiciary outside the Judiciary," he said

The judge wondered why a person being paid well, has a car grant, a medical scheme and mortgage can still be tempted with a bribe.

"Its time also for us to think whether we join the Judiciary to enrich ourselves or to provide service," he said.

However, during her questioning Chief Magistrate Evelyn Olwande corrected the judge saying not all judicial officers are paid well.

Olwande said some magistrates are earning so little that their salaries cannot finance their mortgages and car loans.

Ouko brings more than 34 years of judicial service experience if appointed the next Chief Justice.

He rose from the rank of a magistrate to the top level of court administration and has trained in court administration both locally and overseas.

In 1997, he took part in training in the Washington International Management Institute in USA. In 1993, he attended Court Administration Training at the Royal Institute of Public Administration in the UK.

In 1991, he attended another training in the administration of courts in the USA among others. He is also trained in administration at the former Government Training Institute and former Kenya College of Communications Technology Mbagathi.

Justice Ouko prides himself on having a better understanding and knows the synergies and the relationships within the Judiciary having served as secretary of the JSC for over four years.

He also prides himself in being the brainchild of the NCAJ which was proposed in the Ouko Task Force report on Judicial Reforms which he chaired.

Ouko is well conversant with the operation of all levels of the court system, understands the level of cooperation with the other branches of government, while maintaining independence, having served as the Accounting Officer of the Judiciary for many years.

He has been involved in institutional reforms in the Judiciary from the Kotut Committee on the financial independence of the Judiciary and the Delinking Committee that saw the Judiciary cut historical links with the Executive in so far as the terms and conditions of service of staff were concerned.

Other task forces Justice Ouko sat on included the Kwach Committee, which among other things addressed the issues of judicial rectitude.

The judge was tasked in 1994 by the Chief Justice to draft the first code of conduct for the Judiciary.

He also served as secretary to the Goldenberg Commission which looked into one of the biggest scandals during President Daniel arap Moi's era.

The Ouko Task Force on the Judiciary Reforms was a milestone in the kind of far-reaching recommendations which informed the entire Chapter 10 of the Constitution; the expansion of the JSC, its functions, vetting of judges and magistrates, the Judiciary Fund and performance management.

As president of the Court of Appeal, he has brought freshness, teamwork and efficiency despite having few judges.

Justice Ouko was appointed a Court of Appeal judge in 2012.

-Edited by SKanyara