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Kenya: Martha Koome poised to be country’s first female chief justice

By Victor Abuso
Posted on Friday, 7 May 2021 22:21

Judge Martha Koome arrives for the interview for the post of Chief Justice at the Supreme Court building in Nairobi, Kenya April 14, 2021. Zakheem Rajan/Judicial Service Commission/Handout via REUTERS

Kenya is poised to get its first ever female chief justice after the Judicial Service Commission (JSC) nominated Martha Koome to replace David Maraga, who attained retirement age of 70 in January.

Koome now awaits parliamentary approval to become the 15th chief justice of Kenya and the third under the 2010 constitution.

The JSC, a constitutional body mandated to oversee all matters of the judiciary – including the selection of chief justice and judges of the supreme court – settled on Koome after a rigorous interview session that lasted six hours.

“After lengthy deliberations and careful consideration of the performance of various candidates, the JSC has unanimously recommended the appointment of Hon. Koome Martha Karabu as the chief justice of the Republic of Kenya and has submitted her name to the President for appointment,” the JSC said in a statement.

The 61-year-old judge has been practicing law for more than 30 years. She was notably a human-rights defender who fought for democratic space in Kenya during one-party rule in the early 1990s.

  • Between 1994 and 1996, she served as the first treasurer of the East Africa Law Society, a regional body that represents lawyers.
  • In 2003 when she joined the judiciary, she served as a magistrate and later as judge of the court of appeal, following her appointment in 2013.

She also served as an expert in family law, taking a keen interest in children’s cases and went on to receive a runner-up award for UN Kenya Person of The Year 2020.

Doubts cast on selection process

A day before the big announcement of her nomination, the activist group Katiba Institute and US-based legal scholar Makau Mutua filed a case at the high court, seeking to stop the JSC from finalising the interview process.

They questioned why one of the commissioners – professor Olive Mugenda – chaired the interview panel despite the law providing for either the chief justice or the deputy to do so. In this case, it should have been acting chief justice Philomena Mwiu, they argued.

The high court ruled that the interviews continue, but the commissioners should not be involved in the process to choose the new chief justice. However, the court of appeal ruled against this decision, stating:

“Jurisdiction had been objected to on the basis that as the removal of a member of a constitutional commission had been raised by the petitioners, the proper forum and procedure to address the issue was the national assembly, by way of a petition presented thereto, by dint of Article 251 of the constitution.”

This in turn allowed the process to carry on, resulting in Koome’s nomination.

Political influence on the selection

Chapter 10 of the Kenyan constitution states that the chief justice is formally appointed by the president after being selected by the JSC through a competitive process and later vetted by parliament.

However, there can be political interference in the appointment of JSC members who interview candidates for the top job.

Professor Tom Ojienda, who was on the interview panel in 2016 for the retired chief justice, says the job comes with a lot of frustrations that stem from attempts to interfere with the process.

“I remember when I served as a commissioner in the past, we had to leave our phones in a room or switch them off after interviewing candidates. It was not easy,” he says.

Even before the nomination of the new chief justice, there was speculation on social media that the JSC had settled on Koome. Some alleged that this meant she must have been pushed to the job by powerful people in government.

Aivie Apetsi, a women’s rights activist in Kakamega, western Kenya, says that while the nomination of a female chief justice is a step in the right direction to show the leadership ability of women in Kenya, the JSC might have been influenced.

“Though I’m happy that a fellow woman will lead the judiciary for the first time, I believe the process was politically motivated before the anticipated referendum to amend the constitution,” she says.

Challenges ahead of her mandate

Upoming polls

As the 15th chief justice and president of the supreme court, she will lead a team of judges who rule on critical cases.

But most importantly, she will lead the supreme court in determining election disputes.

Since the establishment of the supreme court in 2010, it has ruled on three presidential election petitions.

Most memorable is the presidential petition presented to the court in August 2017. Former chief justice Maraga made a historic ruling, annulling the presidential election after opposition candidate Raila Odinga claimed that the incumbent, President Uhuru Kenyatta, had rigged the process.

This was the first time in Africa that a court had cancelled presidential election results. A repeat election was held but Odinga boycotted it.

Lawyer and political analyst Ojwang Agina says: “It is obvious that, there will be a court case challenging the presidential election results in the future, [and for that] she must show leadership.”

He continues: “Kenyans expect her to gather courage and stand firm against the executive as retired Judge Maraga did.”

But not everyone believes she has what it takes to rise to the challenge.

Koome’s character was put to the test in 2017 when she served as a judge in an appeal court case involving the repeat presidential election. She was one of the judges who overturned a high court ruling that said that the electoral body had irregularly recruited returning officers for the poll that was to be held the next day.

The controversial judgment was made during the night, without the approval of then chief justice Maraga. During her interview, Koome defended herself, saying that she had followed orders of the president of the appellate court, considering that it was an urgent matter.

Judiciary independence

After the former chief justice annulled the 2017 election, President Kenyatta warned that the court’s decision would be “revisited”. His statement was interpreted as an attempt to intimidate the chief justice and other judges of the supreme court.

“We shall revisit this thing. We clearly have a problem, who even elected you?…We have a problem and we must fix it,” Kenyatta said in reference to the judiciary.

Two years later, in 2019, the now retired chief justice complained of budget cuts, elsewhere accusing Kenyatta’s government of impunity and disrespecting court orders.

Ojienda, who was also a former member of the JSC, says the new chief justice will have to rise to the occasion to ensure that the judiciary is funded, as this needs political will from the executive branch.

“She has an uphill task. […] She has to bring money to the judiciary […] to make things move,” he says.

When asked during her interview how she intends to deal with these challenges, including the delayed appointment of 41 new judges, Koome said: “This must be resolved through negotiations. We are independent as [the] judiciary and nobody should attempt to take its dependence.”

Former chief justices after the new constitution

After the enactment of the new constitution in 2010, there have been two chief justices, both now retired.

Like all judges, the chief justice can stay in office until the age of 70, though one can also opt for retirement from 65.

Willy Mutunga: 2011-2016

  • He was appointed in 2011 and was the first president of the supreme court, which was introduced in 2010.
  • In 2016, when he was 69 years old, he chose early retirement to aid in the transition to his successor in readiness for the August 2017 elections.
  • Before that, he had served as lawyer and political activist.

David Maraga: 2016-2021

  • He served as the 14th chief justice of Kenya and the second after the formation of the supreme court. He retired after turning 70.
  • He is mostly remembered for his leadership in the historic nullification of the 2017 presidential elections.

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