[Congressional Record (Bound Edition), Volume 158 (2012), Part 4]
[Extensions of Remarks]
[Pages 5628-5630]
[From the U.S. Government Publishing Office, www.gpo.gov]




     KEYNOTE SPEECH FOR THE AFRICA AND INTERNATIONAL LAW CONFERENCE

                                 ______
                                 

                            HON. STEVE COHEN

                              of tennessee

                    in the house of representatives

                       Wednesday, April 25, 2012

  Mr. COHEN. Mr. Speaker, I submit the following remarks given by Willy 
Mutunga, Chief Justice and President Supreme Court of Kenya on April 
13, 2012.

       Fellow Africans and our Friends: I thank the Albany Law 
     School and Professor James Gathii for inviting me to this 
     conference. I am delighted to be among so many practitioners 
     and scholars of international law who share a commitment to 
     Africa. There is a very special reason for me to be 
     delivering this address today. April 13th was the late 
     President--Mwalimu-Julius Nyerere's birthday. He would have 
     been 88 today. Nyerere was a special and inspirational 
     leader--he believed in the solidarity of the African people 
     as well as in human dignity.
       Nyerere was interested in both constitutional law and 
     international law. There is a picture of him as a student at 
     Edinburgh holding a copy of Dicey's Law of the Constitution. 
     His interest was both scholarly and practical. It fell to him 
     to develop a constitution suitable for his country--where his 
     commitment to a one party state, although intended to 
     increase democracy, must have come sorely in conflict with 
     the Diceyan preference for the rule of law. As far as 
     international law goes, he was greatly concerned to promote 
     African unity, redefine the relationship between Africa 
     (indeed the whole of the South) and the West--as well as deal 
     with Tanzania's colonial legacy, including that relating to 
     treaty succession. He ruled out automatic succession, so the 
     newly independent country was not burdened with unfair and 
     unequal obligations.
       I also felt honored as I read the biographies of the other 
     participants in this conference: they read like a ``Who's 
     Who?'' of international law and Africa. One only has to look 
     at the conference program to see the broad depth of 
     international law work relating to Africa. The papers 
     submitted are impressive. I am looking forward to the 
     deliberations here and the opportunity to get to know you and 
     to talk about our common commitments and concern about 
     Africa. My challenge to you always is to continue making 
     transformative contributions in your work on Africa and 
     international law. This will at times require those of you 
     who are based outside Africa to return home and help 
     contribute to the growing use and practice of international 
     law in Africa.
       My focus this morning is the new Constitution of Kenya and 
     the role of the judiciary within it. First I want to tell you 
     about that constitution and the vision that it espouses. We 
     are now engaged in the challenging but difficult task of 
     implementation in which a key role has been assigned to the 
     judiciary. The judiciary has already made a good start on a 
     progressive, indeed in some respects, radical jurisprudence--
     and now enjoys great public support.
       The Constitution is one of the most progressive in the 
     world. It was overwhelmingly approved in a referendum as a 
     result of the most consultative and participatory processes 
     of Constitution making anywhere in the world. The long period 
     before the Constitution was upheld in the referendum was

[[Page 5629]]

     characterized not only by delays and deadlock, but by a 
     series of governance challenges familiar in many countries of 
     Africa:
       An absence of a political culture of obedience to and 
     respect for rules, and a cavalier treatment, even of 
     constitutional texts;
       Failed systems including the electoral system;
       Failed institutions including a corrupt judiciary and 
     police force;
       A population tortured and inhibited from fulfilling its 
     full potential;
       Exclusion of women and many groups from full participation 
     in society;
       Gross manipulation of ethnic, racial, regional, religious, 
     generational, clan, class, and occupational divisions by 
     politicians for their personal ends;
       Extreme inequality, great poverty and failure of even 
     development;
       An institutional culture of timidity, even where no threats 
     existed;
       A society and politics characterized by violence, fragility 
     and instability; and
       An international community that excelled in perfidy and 
     double standards and that could not be relied upon to 
     consistently support progressive constitutional reforms.
       The result of the above has been a massive culture and 
     practice of impunity and the marginalization of the 
     constitution. The Constitution, which was, as my old teacher, 
     and one of the leading constitutional scholars in Africa and 
     the world, Yash Ghai is fond of saying, ``forced upon the 
     rulers by the ruled.'' Here Yash's reference to rulers means 
     both internal and external rulers--for Ghai, the Constitution 
     has to be written to address these ills.
       The 2010 Constitution of Kenya seeks to incorporate such 
     rules in a number of ways. For example, it constantly 
     emphasizes the sovereignty of the people, and is full of 
     people oriented values. So Article 10 enumerates the national 
     values and principles of governance that bind all state 
     organs as well as everyone who applies or interprets the 
     Constitution or any law or performs any public duty:
       Patriotism, national unity, sharing and devolution of 
     power, the rule of law, democracy and participation of the 
     people;
       Human dignity, equity, social justice, inclusiveness, 
     equality, human rights, nondiscrimination and protection of 
     the marginalized;
       Good governance, integrity, transparency and 
     accountability; and
       Sustainable development.
       I had argued before its promulgation that our constitution 
     should establish a human rights state and society whose 
     vision is radical social democracy. It is my view that this 
     has now happened. It is, therefore, not surprising that there 
     is considerable internal and external resistance to the 
     constitution from people who have a vested interest in bad 
     old habits--tribalism, nepotism and corruption. This 
     increases the responsibility of the judiciary to ensure the 
     enforcement of the constitution, as indeed is envisaged in 
     Art. 20(3), which requires that a court develops the law 
     where the Bill of Rights fails to give effect to a right or 
     fundamental freedom.
       The extent of my personal pride, sense of responsibility, 
     and hope, as head of the judiciary, can perhaps be judged 
     from the fact that I once wrote a book about efforts for a 
     new Constitution, in the 1990s, in which I said ``The process 
     of making the new constitution, the credibility of the final 
     document and whether the people would be convinced that they 
     own the new constitution are all issues at the root of the 
     problem of constitution making. It is a fact that the 
     judiciary has not fully implemented the Bill of Rights to 
     protect the rights of the people against encroachment by the 
     executive and state apparatuses. The overhauling of the 
     judiciary and judicial system is also at the root of these 
     issues.''
       I still believe in the key importance of the judiciary. And 
     the Constitution does give it a central role. Article 259 
     requires that the Constitution be interpreted in a way that 
     promotes its purposes, values and principles, an obligation 
     placed specifically upon courts and tribunals by Article 
     159(2)(e). And it provides a practical basis for this central 
     role of the courts by its provisions designed to make them 
     truly accessible, including through the institutionalization 
     of public interest litigation. It destroys old concepts of 
     standing by providing that anyone may bring an action to 
     protect rights or enforce the constitution, even if they have 
     no interest other than that of concerned citizen. It 
     prohibits the charging of court fees for actions to enforce 
     the Bill of Rights. It endorses the practice that the Indian 
     Courts call ``epistolary jurisdiction''--the possibility of 
     actions being commenced by informal documentation. And while 
     requiring the rules of natural justice to be observed, it 
     denies the possibility of ``unnatural justice'' in the form 
     of procedural technicalities standing in the way of justice. 
     Much of this comes ultimately from the jurisprudence of the 
     Supreme Court of India, some by way of the South African 
     Constitution.
       The judiciary was one of the most criticized of the 
     institutions of the old order. The legacy of the one party 
     state was still discernible in judicial pandering to 
     executive wishes. And I do not mean merely the sort of 
     deference to the legislature that lawyers may legitimately 
     argue about, but judges who would adjourn matters before them 
     to take instructions from State House. The judiciary was one 
     aspect of the machinery of impunity. Simple financial 
     corruption was also rife. And, if you are auctioning your 
     judgment to the highest bidder, it is probably counter-
     productive to exhibit much legal skill! For many years law 
     reports were not up to date, and legal literature was all but 
     non-existent.
       Radical measures were needed. And they are found firstly in 
     a process of subjecting all serving judges and magistrates to 
     an examination of their suitability to remain in office. This 
     process is under way, in the hands of an independent body, a 
     process with which I have nothing to do, and on which it is 
     of course improper for me to comment. Secondly, the 
     appointment system was revamped. Now judges are interviewed 
     and nominated by a Judicial Service Commission truly 
     independent of government. The President is to have no 
     discretion but must act on the Commission's recommendation. 
     The Chief Justice and Deputy must be approved by Parliament. 
     I was myself interviewed by the parliamentary committee, on 
     live television, and questioned about, among other things, my 
     finances, my attitudes to certain sensitive issues, my 
     sexuality and my earring!
       The judiciary has embarked upon many organizational changes 
     intended to realize the Constitution's vision. These include 
     the recruitment of judges and magistrates and professional 
     administrative staff. Recently we appointed 26 judges to the 
     High Court (that is the court of first instance of unlimited 
     jurisdiction)--half of them women. The Court of Appeal now 
     has 7 more judges, 5 of them women. We will recruit 160 
     Magistrates before the end of May, 2012. We have delinked 
     judicial functions from administrative functions, boldly set 
     out to stamp out corruption in the judiciary while speeding 
     up reforms in computerization and other electronic justice 
     measures. We have achieved some significant progress in 
     reducing the backlog of cases and changing backward judicial 
     culture. The 12 clusters that reflect these reforms, 
     including the creation of progressive, indigenous and 
     patriotic jurisprudence that I touch on later are contained 
     in a write-up named the Judicial Transformation Framework 
     that I will launch in May, 2012.
       The constitution also provides for the decentralization and 
     democratization of the judiciary. Unlike previous years when 
     the old constitution made the Chief Justice a judicial 
     autocrat and monarch, under the new constitution I do not 
     control everything from the top. I have already set up a 
     management and leadership committee that is representative 
     and participatory.
       Organization is of course important, even essential, to 
     make the courts accessible, to end the interminable delays, 
     the strain on the pockets and the patience, and to end 
     impunity and, as far as the courts can, injustice. But I want 
     briefly to emphasize something else.
       I preside over the Supreme Court. As I understand the 
     reasoning of the Constitution makers when creating this new 
     court, apart from the desire to reintroduce the possibility 
     of a second appeal, was similar to that that motivated the 
     drafters of the South African Constitution when they created 
     the Constitutional Court: to have at the apex of the system a 
     court that would be respected, was committed to the 
     Constitution and could set a new standard, and a new tone. In 
     my view, one of the most important tasks that court will 
     perform will be as a source of a new, highly competent and 
     indigenous jurisprudence.
       I link this last adjective to the Constitution's value of 
     patriotism. Patriotism (when not being abused as the ``last 
     refuge of the scoundrel'' in Samuel Johnson's words) requires 
     putting love of country above love of self. For a judge it 
     does not mean putting country above justice. I conceive that 
     it requires the judge to develop the law, for, as we all 
     know, in the common law system that is what judges do, in a 
     way that responds to the needs of the people, and to the 
     national interest. I call this patriotic and indigenous 
     jurisprudence. Above all, it requires a commitment to the 
     Constitution and to the achievement of its values and vision.
       But don't get me wrong: by ``patriotic and indigenous'' I 
     do not mean insular and inward looking. The values of the 
     Kenyan Constitution are anything but that. We need to learn 
     from other countries. And we need to learn from scholars like 
     this assembled company. We intend to build up a network of 
     interested and highly qualified academics who share our 
     vision. I hope that some of you here will form part of that 
     network. My concern, when I emphasize ``indigenous'' is 
     simply that we should grow our jurisprudence out of our own 
     needs, without unthinking deference to that of other 
     jurisdictions and courts, however, distinguished. The Kenyan 
     judiciary has, therefore, a great opportunity to develop a 
     robust, indigenous, patriotic and progressive jurisprudence 
     that will give the country direction in its democratic 
     development. This transformative mission is a duty to all 
     judicial officers. They have all undertaken a constitutional 
     obligation to undertake it and I have challenged them to

[[Page 5630]]

     make a personal obligation to help accomplish it.
       Former Justice Krishna Iyer of the Indian Supreme Court 
     expressed the same ambition, in his inimitable style:
       Jurisprudence must match jurisdiction and jurisdiction must 
     broaden to meet the challenges of the masses hungry for 
     justice after a long night of feudal-colonial injustice. . . 
     . The rule of law must run close to the rule of life and the 
     court, to be authentic, must use native jural genius, people-
     oriented legal theory and radical remedial methodology 
     regardless of Oxbridge orthodoxy, elitist petulance and 
     feudal hubris.
       Far from being inward looking, it would be my hope that we 
     could learn from, and even emulate, distinguished courts in 
     other countries, including, for example, the Supreme Court of 
     India and the South African Constitutional Court. The Kenyan 
     courts do not need to be as bold as the Indian apex court: 
     many of its procedural innovations in public interest 
     litigation are already enshrined in our constitution. And I 
     would argue that the types of jurisprudence that that court 
     has been so creative in developing are already part of our 
     constitution. Protection of the environment, recognition of 
     rights of communities especially in land, affirmative action, 
     rights of persons with disability, rights to education, 
     health and food--and the redress of past injustices--are 
     engraved in our constitutional text.
       What the first Chief Justice of the South African 
     Constitutional Court, Arthur Chaskalson, said of their 
     constitution could just as well be said of ours:
       We live in a society in which there are great disparities 
     in wealth. Millions of people are living in deplorable 
     conditions and in great poverty. There is a high level of 
     unemployment, inadequate social security, and many do not 
     have access to clean water or to adequate health services. 
     These conditions already existed when the Constitution was 
     adopted and a commitment to address them, and to transform 
     our society into one in which there will be human dignity, 
     freedom and equality, lies at the heart of our new 
     constitutional order.
       For these reasons, including that our Constitution is 
     couched often in language similar to that of South Africa, I 
     anticipate that we shall learn a great deal from them, though 
     always, as I say, suiting the decisions to our own realities.
       Upendra Baxi wrote, of Public Interest Litigation (PIL),
       The Supreme Court of India is at long last becoming . . . 
     the Supreme Court for Indians. For too long the apex court 
     had become ``an arena of legal quibbling for men with long 
     purses''. Now increasingly, the court is being identified by 
     the Justices as well as people as ``the last resort of the 
     oppressed and bewildered.''
       I would hope that the Supreme Court of my country will be 
     the Supreme Court for Kenyans where the oppressed and 
     bewildered will find justice.
       But it is not enough for the Supreme Court to shine in 
     jurisprudential terms. Most cases will never get beyond the 
     High Court. The corollary of the decision to create a new, 
     final, court of general, not specifically constitutional 
     jurisdiction, was the desire that courts at all levels could 
     confront constitutional issues and deal with them in a way 
     that fulfills the constitutional dream. We are hoping to 
     raise standards of judging and standards of advocacy, 
     including through the work of the Judicial Training 
     Institute, and by adopting frequent use of written briefs, 
     rather than just skeleton oral arguments. The development of 
     a new jurisprudence must be a collaborative effort between 
     judges at all levels, and practicing and academic lawyers.
       The internet is making access to precedents much easier, 
     and there is an improvement in the law reporting situation. 
     There is even some sign of a resurgence of interest in 
     writing about Kenyan law. Do add your bit!
       If I may turn now to the focus of concern of most of you: 
     international law. The Constitution took a bold step and 
     provides that ``The general rules of international law shall 
     form part of the law of Kenya'' and ``Any treaty of 
     convention ratified by Kenya shall form part of the law of 
     Kenya under this Constitution''. Thus Kenya has become a 
     monist state rather than a dualist one!
       The implications of this will have to be worked out over 
     time, as cases come before the courts. I would not have you 
     imagine that Kenyan judges have ignored international law. I 
     know firsthand from Kenya's supercharged civil society that 
     constantly makes claims of international law to hold the 
     government accountable, exemplifies the growing importance of 
     international law in our courts. The courts have often 
     applied the familiar common law approach, and indeed quoted 
     the Bangalore Principles on Domestic Application of 
     International Human Rights Norms, including:
       It is within the proper nature of the judicial process and 
     well-established judicial functions for national courts to 
     have regard to international obligations which a country 
     undertakes--whether or not they have been incorporated into 
     domestic law--for the purpose of removing ambiguity or 
     uncertainty form, national constitutions, legislation or 
     common law.
       However, where national law is clear and inconsistent with 
     the international obligations of the State concerned in 
     common law countries the national court is obliged to give 
     effect to national law. In such cases the court should draw 
     such inconsistency to the attention of the appropriate 
     authorities since the supremacy of national law in no way 
     mitigates a breach of an international legal obligation, 
     which is undertaken by a country.
       Now, however, the courts have greater freedom. Many issues 
     will have to be resolved: what precisely are the ``The 
     general rules of international law''?; what is the effect of 
     the direct application of a treaty of which the language is 
     not self-executing, such as ``States Parties shall take all 
     appropriate measures'' rather than ``everyone has the 
     right''? And what is the effect of a treaty provision that 
     does not fill a gap in domestic law but inescapably conflicts 
     with it? And what if the general rules of international law 
     are exploitative, oppressive and subvert the radical social 
     democratic vision of our constitution? All these questions 
     clearly identify where the scholarship of people like 
     yourselves, will be much appreciated by both bar and bench.
       I should also like to quote another Bangalore Principle, 
     relevant to my theme of indigenous jurisprudence:
       While it is desirable for the norms contained in the 
     international human rights instruments to be still more 
     widely recognized and applied by national courts, this 
     process must take fully into account local laws, traditions, 
     circumstances and needs.
       How can we achieve this marriage consistent with 
     international law obligations?
       Let me also emphasize that Kenya does not intend to be a 
     ``user'' of international law, but a producer, shaper and 
     developer of it as well. This is the link to the Nyerere 
     Doctrine where I began. Nyerere refused to accede to existing 
     international rules on treaty succession and came up with his 
     own innovation. Kenyan judiciary will not just import all 
     international legal rules including those which are 
     disempowering to the South as a political and economic 
     category. Instead, as I pointed above in our strategy to 
     create an indigenous, patriotic and progressive 
     jurisprudence, the Kenyan judiciary will use our new 
     constitution to begin a dialogue with international legal 
     communities to nudge the jurisprudence of social justice in a 
     progressive direction. In particular, we have a chance to 
     develop jurisprudence on economic and social rights in ways 
     that are unique to our social and economic development. We 
     intend, therefore, to be able to export progressive 
     jurisprudence to the rest of the world.
       Finally, let me not give the impression that I am negative 
     about the work of my judicial colleagues. There are many 
     competent and committed members of the bench. Even under the 
     former constitution with its inadequate Bill of Rights (more 
     limitations than rights!) creative judges were doing their 
     best. And now many of them, new and longer established, are 
     responding with enthusiasm to the challenges and 
     opportunities of the new Constitution. I cannot really 
     comment on individual cases--none has come before us yet, and 
     some will undoubtedly do so. But I personally feel encouraged 
     by signs of willingness to draw on international instruments, 
     not only treaties, and by reliance on the values including 
     those of Article 10--as Article 259 requires.
       As we say in Kenya in Kiswahili--Asante Sana. We also say 
     Shukrani, shukran and shukria. Thank you very much.

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