If Institutional Memory Was A Person


If Institutional Memory Was A Person

Can one claim to be a fully formed judge if they lack the ability to throw a rib-cracking salvo or two during judicial proceedings? Maybe not. And so during the reading of the Supreme Court’s verdict on the Building Bridges Initiative, the ordinarily taciturn Justice William Okello Ouko ventured off-script for a moment, to remark that in his understanding of Kenyans, he wouldn’t be surprised if children born around the time of the reading of the judgment would be named Basic Structure Doctrine, going by how commonplace the term had become in everyday conversation.

Ouko was referencing the Kesavananda case by the Indian Supreme Court, which affirmed the existence of a Basic Structure in a constitution, a case which Ouko opined resulted in Indian newborns getting named Kesavananda. To Ouko, Kenyans were even more likely to adopt the name “Basic Structure” for their kids. It could have been a dad joke. But at 60, no one can begrudge Ouko for trying.

Born on 21 November 1962, William Ouko’s knack for relatability can be traced backwards, a good place to start being his 2016 Master of Arts in Criminology and Criminal Justice dissertation written at Egerton University in which Ouko posited that access to justice was impeded by the unfettered use of legal jargon during court proceedings, thereby alienating the public. Ouko’s remedy was the need for more legal aid services, considering the low numbers of interpreters and the high cases of inaccurate interpretation. If the law wasn’t serving the common man and woman, then who was it serving?

And yet one would expect Ouko to be walking with his nose up in the air, having clocked a remarkable 35 years in judicial service, starting off at the bottom of the barrel in 1987 as a District Magistrate II (Professional), being the lowest rank in the pecking order, and rising to sit in the apex court. Ouko’s rise was meteoric in that in a span of two years since making his judicial debut, he became the Deputy Registrar of the High Court, thereafter becoming the first ever Chief Court Administrator, a position he held until 2002 when he was appointed the Registrar of the High Court. Two years later, President Mwai Kibaki appointed Ouko as judge of the High Court. Ouko’s next stop was the Court of Appeal bench, which he joined eight years later in 2012. Six years later, appellate judges elected Ouko as President of the Court of Appeal. All indicators were that the judiciary’s inside-man was unstoppable.

But if one were to look at Ouko’s judicial trajectory, it would be safe to say that the man who still remembers his Usenge Primary School classmates by name was more an outward facing public-good agent than an inward looking self-serving careerist, going by the tough tides he endured as a judicial administrator during President Daniel arap Moi’s reign, turbulences which Ouko survived unscathed.

And as if to mirror the country’s transition from the old constitutional order into the new, as the Constitution of Kenya 2010 lingered in the horizon, Ouko’s quietly accumulated experience as a judicial administrator came in handy when he was appointed to co-chair the Task Force on Judicial Reforms, which was christened The Ouko Taskforce, much as Ouko had Nyamira Senator Okong’o Omogeni as co-chair. Ouko’s findings and subsequent recommendations found their way into the architecture of the Constitution of Kenya 2010, including but not limited to the establishment and composition of the Judicial Service Commission. Other outcomes of the taskforce were the revision of disciplinary processes for judicial officers, and the coming into play of the Judicial Transformation Framework.

Ouko similarly had stints as secretary to the National Council for Law Reporting, joint-secretary of the Presidential Committee to Inquire into Terms and Conditions of Service of the Judiciary, and as joint secretary to the Judicial Commission of Inquiry into the Goldenberg Affair, among others. Putting all of these together — Ouko’s service to the various inquiries and tribunals and his extensive input in improving the terms of service for judicial officers, including establishing requisite pension and other schemes — it was evident that here was one of Kenya’s most industrious albeit silent judicial giants.

It was therefore only natural that when the vacancy for the Office of the Chief Justice arose in 2021, Ouko threw his hat in the ring. Following the live televised interviews, Ouko emerged as one of the natural favourites to the viewing public courtesy of his cool, calm, and collected demeanour as he lay bare his judicial philosophy and exhibited unrivalled institutional memory, vividly painting a before and after picture of judicial transformation, with himself being in the room when those changes were either being proposed or implemented. Ouko’s University of Nairobi classmate and Court of Appeal colleague Martha Koome emerged victorious, leaving Ouko to gun for the simultaneously vacant position of Justice of the Supreme Court. Ouko sailed through with ease, joining the Koome Court.

It has been just over a year since Koome and Ouko joined the Supreme Court, and now the duo comes face to face with their first ever presidential petition. The big question as speculators weigh between the petitioners’ and respondents’ arguments is, through which prism will Ouko look into the matters?

Interestingly, in seeking to understand Ouko’s worldview which potentially influences his judicial mind, one may need to step away from Ouko’s judicial career and peek into a little detail in his resume, that of him being a police reservist between 1994 and 2004. While interviewing to be Chief Justice, Ouko was asked why he thought being a reserve policeman was a good idea, since it seemed strange that an officer of the court would want to be a law enforcer. Ouko had an unexpected answer to the query.

After losing his brother to what Ouko termed criminal circumstances, and after the suspect was set free in circumstances which Ouko’s father found suspicious and blamed on shoddy investigations, the son thought it prudent to honour his brother’s memory by lending an extra albeit motivated hand to law enforcement, much as Ouko rarely put on his police reservist hat. It was an expression of intent to do good, to make better, and to seek justice — whatever that looked like — for his brother and father.

This, then, makes Ouko an idealist of sorts, a believer in good and evil, in a black and white manner.

And so much as Ouko has earned accolades, including bestowment of some of Kenya’s highest national honours such as the Elder of the Burning Spear and Chief of the Burning Spear, and much as Ouko continues to assume formlessness (to borrow Bruce Lee’s words) whenever he mingles with his village folk in Siaya, not as an accomplished man but as a man from within their midst, both the noble’s and the layman’s eyes will be affixed on the man who can make his way through the Kenyan judiciary blindfolded, to see how he rules on the presidential election petition before him.

On 30 December 2002, serving as the Registrar of the High Court, Ouko administered the Oath of Office to president-elect Emilio Stanley Mwai Kibaki. On 5 September 2022, Ouko and six other justices of the Supreme Court will either uphold or quash the declaration of William Ruto as president-elect. It will be the second time when Ouko has a hand in the fate of a president-elect.


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