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Monday, December 6, 2021

Toxic politics, ethnic suspicion blur Martha Koome’s well-deserved nomination as Kenya’s first female Chief Justice

By Dr Vincent O. Ongore

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When the Judicial Service Commission (JSC) sat last week and the week before under the temporary chairmanship (I don’t know if chairpersonship or chairwomanship would apply here) of former Kenyatta University Vice Chancellor and member of the JSC, Professor (of Home Science) Olive Mugenda, to search for a replacement to Chief Justice (Retired) Kenani Maraga, in full glare of cameras, Kenyans were glued to their television screens so they could make their independent judgments.

After all, Chief Justice is the president of the Judiciary, one of the three pillars of government.

The other pillars are the Executive headed by the President, and the Legislature, headed by the Speaker of the National Assembly. As the interviews went on, Justice Martha Koome didn’t impress observers at all, probably due to her evident lack of linguistic flamboyance.

As a matter of fact, I personally did struggle, as always, to pick a line or two from her heavily accented English.

The late Prof Francis Imbuga would refer to this condition as ‘first language supremacy’ – a situation where the first language refuses to give way to any other language to settle in.

In common parlance, it’s referred to as ‘mother tongue interference.’

Commentators through the social and other media were impressed by the performances of SC Fred Ngatia (brilliant gate-keeper for the executive), Justice William Ouko (institutional memory) and Justice Nduma Nderi (smart and eclectic). Prof-Dr Kameri Mbote too put up a good show, but was obviously undermined by her lack of judicial experience.

In the public court, Justice Martha Koome ranked among the last three interviewees.

 Of course, there were light moments and comic reliefs when Justice Marete turned the interview process into a scene akin to the ones in Nicolai Gogol’s ‘The Government Inspector.’

But that doesn’t mean that Justice Martha Koome is without legal substance between her ears. In fact, as has now been confirmed, she emerged the best candidate from a crowded field of experienced and senior Judiciary insiders and practicing advocates, at least according to JSC interview panel. Lawyers keep telling us that they’re learned, and we’re laymen, even in our own fields of specialization.

I am told that in the presence of a lawyer, a Professor of Theoretical Physics is supposed to be a layman in the field despite the fact that most lawyers of my generation (the group that appeared before JSC for interviews) went to Law School because they couldn’t crack even basic physics!

That’s a discussion for another day. So, may be views of laymen do not matter in judicial interviews.

Ms Koome, an Advocate of the High Court of Kenya, has good legal training, experience and exposure.

She graduated with a Legum Baccalaureus (LLB) from the University of Nairobi and Legum Magister (LLM) from the University of London (2010). I suspect she completed the latter by correspondence.

She is a distinguished fighter for human and gender rights for which she has been nominated for global and continental awards.

During the fight for Kenya’s Second Liberation in the 1980s and early 1990s, Ms Martha Koome’s was one of the most consistent legal voices that shook the then repressive and formidable KANU regime.

So, Martha Koome is, certainly, not in the space that she occupies by happenstance.

She has an admirable track record of fighting for justice and human rights, and especially for women.

However, it should be noted that appointments to the Public Service in Kenya take much more than qualifications. In fact, there were among the interviewees people who appeared to be more qualified than Ms Koome, but were side-stepped in her favor.

Some people even thought that the presence of Justice Mwilu as a lady Deputy Chief Justice would disqualify another lady as CJ.

They were wrong. Both the CJ and DCJ are judges of the Supreme Court, which has a total of seven judges. So, the gender equation must be viewed in totality, and not restricted to the CJ and DCJ.

It was curious that none of the sitting judges of the Supreme Court of Kenya, not even the Acting Chief Justice, considered applying for the position of CJ.

Some people believe that Justice Lenaola is probably the most intelligent CJ that Kenya has not had.

Pundits have interpreted the rather unusual occurrence of the conspicuous absence of sitting Supreme Court judges during interviews to an indication that the honorable judges were privy to the shenanigans and preferences around the interviews and nomination of the next CJ, and opted not to be flower girls or male escorts.

More important consideration, though, is the role of the appointing authority in the whole process.

Many people, including senior lawyers and judges, are still deluded by the theoretical separation of Judiciary, Legislature and Executive.

In Kenya, this separation is strictly a theoretical construct. The President reserves the right to appoint and fire the CJ, judges and the Speakers of the National Assembly and Senate.

The rest of it is mere constitutional public relations. Our democracy is not mature enough to stop the executive from misbehaving.

There’s the current case of 41 judges (now 40 after the death in a motor accident of Ogweno Okeche) who were nominated by JSC, but the president has refused to appoint them to the bench, and there’s nothing that the JSC or CJ can do about it.

In fact, the President is even too far up. A CJ can be removed from office by a Cabinet Secretary or a much lower ranked officer. It’s said that in 2003, the then Chief Justice was summoned to the office of Minister for Justice and ordered to write a resignation letter. He obliged.

Long after the Constitution of Kenya 2010, the current DCI personally drove to the Supreme Court and ordered the DCJ (now Acting CJ) to accompany him to the offices to write a statement.

This happened despite the CJ’s protestations, which the DCI ignored with contempt. Back to the role of CJ. The last three presidential elections have ended in court for arbitration. In 2008, the then CJ, Mr Gicheru (now late), swore in President Kibaki at night to serve a controversial second term.

There was every indication that the presidential vote had been manipulated in Kibaki’s favor.

In 2013, Willy Mutunga, on behalf of the Supreme Court of Kenya, read the verdict on the presidential vote from a piece of paper passed to him by Attorney General Githu Muigai in full glare of cameras.

The Supreme Court was to later justify that action on the basis of limited time stipulated by the constitution within which to resolve presidential petitions.

The Supreme Court struggled to write a comprehensive judgment to justify their action. To date, keen legal minds still find loose ends in the 2007 presidential election judgment.

Things were even more disturbing in 2017 when the Supreme Court of Kenya found IEBC culpable for declaring the Jubilee candidate as the winner of the presidential vote on the basis of ‘illegalities and irregularities.’

When the Court ordered IEBC to open its servers so that the results could be verified, the team that included the Chief Registrar of the Court, was denied entry into the IEBC offices!

When a repeat presidential election was ordered conditional upon some requirements to be met, IEBC went ahead with the repeat election, ignoring the Supreme Court-imposed conditions. Sensing the lack of level playing field, the opposition boycotted the repeat presidential elections held on 26th October 2017.

For that embarrassment, the ruling Jubilee party promised to ‘revisit’, and, in deed, throughout CJ Maraga’s reign, the judiciary was starved of resources. There’s every indication that the path to the 2022 Presidency is still convoluted.

This raises the stakes in the judiciary. The powers that be, still reeling from the embarrassment of 2017, cannot countenance a judiciary that they can’t control or manipulate.

But in their zeal to get a CJ who’s agreeable to their machinations, the powers that be have forgotten or simply ignored the fact that Kenya is bigger than Gikuyu, Embu and Meru Association (GEMA).

Going by the traditional pillars of Government, namely, Executive, Judiciary and Legislature, we already have two members of GEMA heading the Executive and Legislature.

That’s already too much concentration of power in one region for a country that has at least 43 ethnicities and many regions.

Although there’s nothing constitutionally wrong with this nomination, it is not lost on Kenyans that the GEMA community is already over-represented in key government corporations, including Central Bank of Kenya, Kenya Revenue Authority, Attorney General, Chief of General Staff, Director General of NIS, DCI, several CSs and Directors.

Such impunity is not healthy for a country that seeks to heal the ethnic fissures that led to the 2007/8 Post-election violence that claimed more than 1300 lives and occasioned the spectacle of internal displacement that affected more than 600,000 internal persons.

Who advises the president on diversity and ethnic cohesion? Kenya has great potential in many spheres. Unfortunately, the country hasn’t been very fortunate with its leadership since independence.

For that reason, Justice Martha Koome’s deserved nomination to the coveted position of Chief Justice of Kenya will not attract the kind of applause that would have been expected of it were the country’s leadership more progressive.

Congratulations Justice Martha Koome.

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