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Constitutional issues concerning Koome’s nomination

By Kibe Mungai
Friday, April 30th, 2021 00:00 | 4 mins read
Justice-Martha-Koome
Chief Justice Martha Koome. Photo/PD/File

Tuesday’s decision by the Judicial Service Commission (JSC) to recommend Court of Appeal judge Martha Koome as Chief Justice came as a pleasant surprise to me in two respects. 

First, the nomination was largely possible because the Constitution vests in JSC the power to recommend a nominee for appointment as Chief Justice in a departure from the practice in presidential systems such as the US in which a president nominates and appoints a CJ after parliamentary approval.

In a sense, therefore, Justice Koome’s nomination is a significant victory for the 2010 Constitution, which radically changed the method of appointing judicial officers.

Secondly, overwhelming opinion of the educated society was that the face of Kenya in the composition of top State organs would be the main consideration by JSC in recommending a CJ nominee. 

It was, therefore, pleasantly surprising that JSC had the courage to make a recommendation whose effect would be to aggravate and compound the perception that majority of senior State positions are held by people from the Mount Kenya region.

Invariably, on account of this face of Kenya mantra, it is likely that the parliamentary process for approval of Justice Koome’s nomination might be a little bumpy. 

Additionally, the failure by JSC to issue a comprehensive statement on why after its reported long deliberations and evaluation it settled on Justice Koome might attract unwarranted speculation, unhelpful to the commission’s choice. 

In my view, Kenyans deserved an explanation of the factors that informed JSC decision and why Justice Koome is best suited to address the myriad challenges facing the justice sector and her ability to lead the Judiciary during the coming political transition that – by the look of the Building Bridges Initiative process and other things – will be prone to considerable constitutional contestations over the next three years.  

That notwithstanding, my considered view is that Justice Koome’s nomination is inspiring, well-merited and she has the capacity to excel as the third CJ under the 2010 Constitution, if Parliament approves her nomination.

From the onset, it should help to remember that Justice Koome was picked by the JSC from nine candidates who brought to the table various competencies, experiences and personal attributes. 

Interestingly, no judge of the Supreme Court and only one High Court judge applied for the position and from the Court of Appeal the only applicants were Justice William Ouko and Justice Koome.

Among Kenya’s top-tier senior advocates, only Fred Ngatia applied.  Without a doubt, Justice Nduma Nderi of the Employment and Labour Relations Court gave a good account of himself but in a profession beholden to seniority, it would have taken a miracle for the JSC to pick him. 

The point here is that when all is said and done, the recruitment of Justice David Maraga’s successor was a three-horse race between Justice Ouko, Mr Ngatia and Justice Koome.

Personal attributes

In the wake of the JSC’s recommendation, Ngatia has protested that he was unfairly denied the job.

Whether or not his complaints are credible, it should help if the JSC could try and explain its decision because in any event, that is the least the Constitution requires. 

For starters, JSC should read the statement of US President Joe Biden when he introduced Justice Merrick Garland as his choice for the position of Attorney General.

Turning to the face of Kenya mantra, I must confess this was the main reason given by many lawyers inclined to believe that Justice Ouko would win the three-horse race, besides his long experience in judicial administration and as appellate judge.

Did JSC err in apparently ignoring the ethnic and regional diversity considerations in nominating Justice Koome?

There is no easy and obvious answer to this question but two things should be noted as Parliament embarks on vetting Justice Koome.

First, all arms of government and organs of the State must comply with the twin constitutional obligations to recruit their respective personnel through open, transparent and competitive processes on the one hand and to ensure the composition of such personnel reflects the ethnic, regional and gender diversity criteria on the other.

In this regard, the mandate of JSC is confined to recruitment of judicial personnel and so it would be accused of overreach and considering extraneous matters if it were to base its decision on composition of other arms of government.  

Accordingly, if Justice Koome’s nomination does not offend the diversity criterion in the composition of the Supreme Court and the Judiciary in general, then the commission cannot be legitimately accused of being oblivious to ethnic sensibilities.

Secondly, whereas Justice Koome will hold a consequential appointive State office if Parliament approves her nomination, it bears noting that  the President and National Assembly Speaker Justin Muturi hold elective positions and their respective terms of office are about to expire. 

Put differently, unless it is guaranteed that in the next nine years when Justice Koome might serve as CJ, the President Uhuru and Muturi will hail from Mt Kenya region, there should be no cause for political alarm.

The makers of the 2010 Constitution opted for a broad-based representative JSC in order to instil confidence in judicial appointments by depoliticising the process and enhancing professional competence.

Since JSC reportedly made a unanimous decision in choosing Justice Koome, good sense dictates respect for its choice unless there are credible reasons to believe she is not fit for the office.

Finally, in moments like this, it helps to pause for a moment and reflect upon the person that providence has conferred the privilege to serve in the high office.

Speaking for myself, among the 10 candidates, Mrs Koome was the only lawyer whose name I heard of as a young man in the 1989–1991 period. 

During the days when great courage was required to speak for justice and question the malfeasance of the power elite, Mrs Martha Koome was heard loud and clear. 

In Justice Koome, we have a decorated warrior for justice and an accomplished activist for freedom and democracy.

In my mind, among the candidates, none deserved the opportunity to oversee the next phase of implementing the 2010 Constitution more than Justice Koome. — The writer comments on international affairs 

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