I would like to express my appreciation and gratitude to all, representatives of the various actors and state bodies in the judicial sector, seasoned lawyers, the public and the court staff, who joined us in this inaugural session of the Supreme Court following the recent court hearing.
I would like to thank my brothers and sisters of the Court of Justice and retired justices who have worked tirelessly over the past decade to position the Kenya Supreme Court as a respected and admired court around the world. It is worth noting that the Tribunal’s indigenous jurisprudence in areas such as the right to vote, human rights (issues related to the compulsory death penalty and the right to housing), the functioning of the decentralized system of government, and the practice of the bicameral system in our legal system are cited and discussed with admiration by Scientists and other courts at regional and international level.
Our focus will be on building on that strong foundation over the next decade. There is no doubt that the adoption of the current constitution in 2010 will be the most momentous event for our generation. The Constitution is the most progressive pillar of Kenyan law and a comprehensive guide for Kenya’s internal organization and global stance.
It must be recognized that the Constitution, in its values, principles and rules, reflects the desire of Kenyans to break with our country’s past of authoritarian governance and unequal society and find a radically different path to the creation of a democratic and egalitarian state and society to strike. It is the primary guide to creating and maintaining a welfare state that meets the needs of Kenyans wherever they are.
The constitution reflects the kind of society Kenyans want to build for themselves and for future generations. It reflects the desire of Kenyans to build a socially just state and society. This is a bold expression of the aspirations and intentions that should enliven all actions by state and non-state actors. Hence, for the Supreme Court and other courts, the development of social justice jurisdiction, or in other words, social justice jurisdiction, will be our guiding star over the next decade.
In essence, our role is to direct other courts to expand the administration of justice in ways that are Kenyans’ own, socially transformative and empowering for communities. The pronouncements in the preamble to the Constitution, Article 10 on the Values and Principles of National Governance, and Article 19.2 for the purpose of the Bill of Rights lead to the inevitable conclusion that the Constitution is a charter for social change.
Since the Supreme Court is the ultimate guardian and guarantor of the Constitution, the Supreme Court will endeavor to give the country legal guidance in seeking to transform society by using the Constitution as an instrument of social change. We shall try to put into practice the instruction, even the order in Articles 20, Paragraphs 3 and 259 of the Constitution and Section 3 of the Supreme Court Act, that courts should develop the law to ensure that the vision of the Constitution is realized becomes.
The Court of Justice values collegiality and courtesy in the way it operates and operates. By emphasizing collegiality, I mean that we as judges are working on a joint project to decide the matters before us impartially and independently in order to clarify the law, i.e. the need to exchange ideas and enrich our perspectives in order to resolve the disputes before us to solve.
However, this does not mean that disagreement is not encouraged; Rather, it means that judges have a duty to fundamentally disagree. Since our legal system is an adversarial legal system that tends to pit parties against each other, it encourages hostility and often leads to uncivilized attacks against judges and lawyers on the other side.
Such a situation weakens public confidence in the judicial process. I expect the bar, while having the leeway and indeed encouraged to be as robust and skillful as possible, appreciates the importance of courtesy. So if you have a different opinion, it will be expressed in a way that respects the saying “disagree without being uncomfortable”. Allowing judges to rule on the real issues, rather than spending their time on the sidelines of who has crossed the line to disregard and undermine the dignity of the court.
It will also be the role of the Court of Justice to resolve monumental and problematic legal issues affecting society and to intervene to ensure that the judicial system works effectively as provided by the Constitution and our laws. To that end, the Court is sitting today to give instructions on the implications of the landmark Supreme Court decision in the Francis Muruatetu decision on the smooth and efficient operation of the criminal justice system.
The Francis Muruatetu case is a landmark decision in our human rights jurisprudence. The Supreme Court ruled that conviction is a judicial, not a legislative, function under the separation of powers that underpins our constitutional order. In addition, since criminal guilt, involvement and abomination can vary, not all murders are created equal and therefore mitigation is required in murder trials, and indeed capital crimes where the accused is at risk of death.
It is therefore inappropriate to impose the same sentence on all murders. The compulsory death penalty was therefore found to be unconstitutional and a new conviction of the applicants by the court of first instance was ordered. The decision is undoubtedly a landmark decision for law enforcement policy in Kenya and a good example of the impact the Bill of Rights has on punishment and the criminal justice system.
It affirmed that constitutional values should be respected in the imposition of penalties for crimes. While Muruatetu was apparently limited to the death penalty in murder cases, the principles set out in the decision had far-reaching implications for conviction in all criminal proceedings. In fact, the Court of Appeal and the High Court have extended these principles to include violent robbery and other criminal cases that require minimum statutory and compulsory penalties.
This is the situation that we want to clarify in the directions. While the Muruatetu principles are arguably directly applicable to other cases of compulsory punishment, there is a lively debate as to whether they apply even when the legislature only prescribes minimum penalties but no compulsory penalties.
This live controversy will be resolved in due course when such cases reach the Supreme Court through the standard appeals process. It is noteworthy that the Supreme Court issued the following orders in the Muruatetu decision: “c) The Attorney General, the Director of the Public Prosecutor’s Office and other relevant authorities are preparing a detailed technical review in connection with this judgment and this order, which with regard to To provide a framework for dealing with repeat sentences similar to those of the present petitioners. The Attorney General is hereby granted twelve (12) months from the date of this judgment to provide a progress report on this matter to the Tribunal.
d) We instruct that this judgment be presented to the spokesmen of the National Assembly and the Senate, the Attorney General and the Kenyan Law Reform Commission, who, with a signal of the utmost urgency, for all necessary changes, formulations and passing of law to make this judgment over the mandatory character of the death sentence and the parameters of what constitutes life imprisonment. “We are meeting in accordance with the orders that were in the nature of a structural prohibition to give instructions about the hearing after the sentence as a follow-up to the implementation of the Muruatetu decision.
The aim of the instructions and the post-judgment hearing is to enable the court to receive a report on the progress made in developing a framework for re-pronouncing hearings and any difficulties in implementing the judgment, so that the Supreme Court can obtain adequate offers can make instructions and orders that ensure the optimal functioning of the criminal justice system. As a priority, I will consult the Attorney General, other actors and stakeholders in the criminal justice system to set up a committee to revise the sentencing guidelines in accordance with these instructions.
In conclusion, I do not want to suggest that I should not mention and express my gratitude to the judges and staff of this court and to all of the judicial officers and staff of the judiciary for the hard work they have done to ensure that our courts have been working since the pandemic a year ago. The pandemic has changed the way the Supreme Court and
other courts were in operation. This has forced us to accelerate the introduction of information technology into our business. The Supreme Court has accepted video / remote hearings to ensure the judiciary has not stalled. I would like to thank the court staff, the judges and the bar association for enthusiastically embracing these changes, even as we work to resolve the teething troubles that have arisen and to ensure that our processes become more efficient over time. With that in mind, I want to assure Kenyans that the Supreme Court and its judges do not live in ivory towers.
We are part of Kenyan society and we are well aware of the burden of promoting social change that the Constitution places on us. But as judges we will remain independent and impartial under the terms of the Constitution, and you will allow us to speak primarily through our judgments and not respond to matters that are not before us. Thanks.
Judge Martha Koome, Chief Justice and President of the Supreme Court of Kenya