Koome taken to task over ruling on repeat poll
Bernice Mbugua @BerniceMuhindi
A case relating to the 2017 repeat presidential election came back to haunt Justice Martha Koome yesterday after she was asked to explain why a Bench she was part of issued orders in the dead of the night and in the absence of one party.
The Bench, which comprised Justices Koome, Erastus Githinji and Fatuma Sichale, had suspended a High Court decision which had declared all the returning officers in the country as illegally in office.
Koome, who was being interviewed for the position of Chief Justice by the Judicial Service Commission (JSC), was put to task on why the bench did not seek out the other counsel in the matter which was of great public interest.
“You can understand a litigant who is horrified and is accusing the court of doing its own things… What was difficult in calling so and so who appeared in the matter to come and deal with the application?” asked Justice David Majanja, a member of the panel.
But Justice Koome said the bench was empanelled by the then Appeal Court President Kihara Kariuki, who is currently the Attorney General and sits in the JSC, to hear the case urgently because the election was to take place the following day.
“My lord, the Attorney General was the President of the Court, then, I was working on the bench in Mombasa and Malindi but as you all know the Court of Appeal is a circuit court, even if you’re in Mombasa you can work in Nairobi,” she said.
She added: “That particular week we were all in Nairobi and, therefore, the day before that election was a public holiday.
I was called by the registrar Mr Serem and told that the president had certified the matter urgent and empaneled the bench to hear the matter urgently.
We should not lose sight that this was a determination of a presidential election taking place the next day.”
Justice Koome told the panel that when only one advocate appeared before them, they asked why the other party was not represented and they were informed that due to the urgency of the matter, there was no time to serve.
Public interest
She defended herself and the bench, saying they used their discretion to see where justice lay in the matter without occasioning a constitutional crisis by interfering with the date of the rescheduled repeat presidential election.
“This was an ex-parte matter, the presiding judge was Justice Githinji... we discussed the matter and whether parties were served and our jurisdiction to make an interim order and we found we could make an interim order,” she said.
Justice Majanja wondered why they sat at night and enquired whether the Chief Justice had authorised the move.
Koome, however, maintained that they were solely answerable to the President of the Court of Appeal who constitutes benches and who prepares the cause list.
“As long as the president had already prepared the cause list, called me to sit and use my own discretion as a senior judge, I appreciated this is a matter of national importance that requires intervention… you saw the Supreme Court sitting through midnight, so this was a matter of extraordinary circumstances,” she said.
The judge also explained that her decisions have always been informed by public interest and promotion of human rights.
Justice Koome was also asked to explain the philosophy behind the decision by the Court of Appeal to overturn the decision by the High Court in a matter relating to the Communications Authority.
“This is the authority that has the mandate of managing the communications for the whole country and it had been invaded by illegal mobile operators who were not paying their dues… CA had started the process of consultation for people to understand that the Building Management System (BMS) was supposed to nib the illegal mobile communication,” Justice Koome explained.
“However, in the middle of consultation, before it is finalised, they are taken to court with the allegations that CAK was installing something that would eavesdrop on our conversation,” she added.
On the issue of succession and right to property, Justice Koome noted that marriage does not necessarily guarantee one ownership rights to property acquired by a spouse.
According to the judge, many spouses have taken advantage of marriage to demand ownership and equality of rights to property.
“If I got married today and I have some property, my spouse is not entitled to it. And if I got married and my husband has some property, I am not entitled to it because that is his property,” she said.
Patriarchal dominance
The judge, however, noted that in instances where the couple has lived together for some time and together acquired property, either party in the marriage acquires occupational rights.
Justice Koome noted that it would be historic for her to be appointed the first woman CJ in Kenyan history though the challenges within the Judiciary are gender-neutral.
“As women, we face the same challenges our male counterparts face. Leadership does not require a man or a woman, it should be based on skills,” she said.
“Being a CJ is like a driver. Whoever sits on the driver’s seat, as long as they have the licence, the car will move. To me leadership and interpersonal skill is what I need for the CJ job.”
When asked whether she subscribed to structures of patriarchal dominance and oppression, she answered in the affirmative.
“I subscribe to that 100 per cent. The legal structure is dominated by patriarchy because our society is patriarchal.
Laws are made in Parliament and the dominant majority in Parliament is male so it’s informed by their background and socialisation,” Koome said.
“We have come a long way especially with the Constitution that outlaws discrimination. The old constitution outrightly discriminated against women as it did not allow citizenship and allowed customary law,” she added.
On the issue of mandatory death sentence, Judge Koome said doing away with mandatory aspects of it had served the rule of justice well as most times, judges’ hands were tied.
“But the death penalty as the only penalty is unconstitutional because it takes away judicial authority,” she said.
She argued that not all murders are the same and, therefore, the sentencing ought not to be the same.
On the issue of the stalled appointment of 41 judges, she told the commission that she would negotiate with the Executive.
Koome also said she would negotiate with the government to ensure that all tribunals are transitioned to the Judiciary.
“Indeed, all the tribunals are supposed to transit to the Judiciary. It is the usual push and pull because you are talking of the power of appointment and running tribunal from a ministry. It is the usual teething problems that need to be overcome,” she said.
The interviews continue today with Justice Njagi Marete expected to take the hot seat.
