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Why panel settled on Koome for CJ

By , People Daily Digital
Wednesday, April 28th, 2021 00:00 | 4 mins read
Chief Justice Martha Koome. Photo/PD/FILE

Eric Wainaina @Ewainaina

Appellate Judge Lady Justice Martha Karambu Koome, who was yesterday recommended for promotion to succeed David Maraga as Kenya’s next Chief Justice, was considered as “a safe pair of hands,” to steer one of the most crucial arms of government, Judiciary insiders said.

The apparent bad blood between the Judiciary and the Executive and rampant corruption within the courts are said to have played to Justice Koome’s advantage.

The judge is said to have won the confidence of the Judicial Service Commission (JSC) panel and the government as “the person who can be relied upon to mend fences between the Judiciary and President Uhuru Kenyatta’s administration”.

“She also has the muscle to fight corruption and cartels in the Judiciary. Almost everyone was fed up with a CJ whose only engagement was initiating duels with the President,” said a senior judicial official.

Justice Koome, who becomes Kenya’s first female CJ, now faces an uphill task of restoring trust and reputation of the Judiciary that has been grappling with allegations of corruption and delay of cases.

Overall winner

Senior Counsel Fred Ojiambo says though it has always been a rule to have the holders of CJ and Deputy Chief Justice being from the opposite gender, there is no law requiring the same. 

“It is only a practice that is not enshrined in law,” Ojiambo told People Daily yesterday.

Lawyer Paul Mwangi concurred with Ojiambo’s argument, saying there was no requirement that the Chief Justice and the deputy be of opposite gender.

“In fact, the gender requirement does not apply to the leadership of the three arms of government,” said Mwangi, a joint secretary in the taskforce that drafted the Building Bridges Initiative (BBI) Bill. 

But independent sources intimated that Justice Koome’s nomination could be a pointer to Deputy Chief Justice Philomena Mwilu that her time in the Judiciary is up.

Even though commentators never predicted Koome’s victory, she beat nine candidates including Justice Marete Njagi, lawyer Philip Murgor, Justice Said Chitembwe, law scholar Prof Patricia Mbote, Justice Nduma Nderi, Senior Counsel Fredrick Ngatia, Justice William Ouko, Prof Moni Wekesa and lawyer Alice Yano.

“After lengthy deliberations and careful consideration of the performance of the various candidates, the JSC has unanimously recommended the appointment of Hon Lady Justice Martha Karambu Koome, judge of the Court of Appeal, as the Chief Justice of the Republic of Kenya,” JSC vice-chairperson Prof Olive Mugenda said in a statement while making the announcement.

Judiciary insider

Justice Koome is said to have emerged the overall winner followed by Justice Ouko, lawyer Ngatia, Prof Mbote and Justice Chitembwe coming in fifth.

Sources said the race between the first three candidates was almost a close call, with the winner leading by a slim margin.

Sources within the Judiciary intimated that Justice Koome may have emerged victorious due to a number of factors, among them being a Judiciary insider who could take advantage of her experience to initiate required reforms.

But on top of that is her non-combative style of administration, which sources say would help her mend the sour relations between the Executive and the Judiciary.

“Nobody wanted somebody who would continue in the footsteps of Maraga. We wanted somebody who would not only reconcile with the Executive, but also with Parliament,” a JSC member told People Daily.

Sources intimated that the government may have played a major role in tilting the outcome of the process.

Apparently, JSC comprises nine members, with the government enjoying support from five nominees whom President Uhuru Kenyatta nominated, thus controlling 36 per cent of the vote.

The Judiciary is represented by Justices Mwilu, Mohamed Warsame, David Majanja and Chief Magistrate Evelyne Olwande.

Usually, the Judiciary has an upper hand by having five members, thus controlling 45 per cent of the vote, but the absence of a Chief Justice, a position left vacant by Maraga’s retirement, reduced their voting power.

Sources say government-friendly members in the JSC include Prof Mugenda and Felix Koskey (both representing the public), Patrick Gichohi (Public Service Commission), Macharia Njeru (Law Society of Kenya) and Attorney General Paul Kihara Kariuki.

Full in tray

A last-minute bid by the group oscillating around the Judiciary to dislodge Ms Mugenda from chairing the interviewing panel failed when the Appeal Court allowed the process to proceed.

Had the petition by activist Memba Ocharo succeeded, Justice Mwilu would have been given the mantle to chair the interviews, with two votes... in her own capacity as Deputy Chief Justice and as the acting chairperson of JSC. This would have likely titled the voting in favour of JSC.

Although qualification is an important factor in choosing the Chief Justice, voting is said to be the main determining factor.

“When it comes to voting, the majority carries the day. Commissioners rank the candidates according to the side of the coin they support,” a former JSC member revealed yesterday.

If her nomination to the coveted position is approved by the National Assembly and subsequently ratified by President Kenyatta, Koome, 61, will make history as the country’s first female CJ and President of the Supreme Court, which, since the promulgation of the 2010 Constitution, has been held by men including Maraga and his predecessor Willy Mutunga.

It will also be the first time the Judiciary will be led by two lady judges, Koome and Mwilu.

Some of the issues the mother of three will be confronted with once in office include addressing corruption within the Judiciary and mending the frosty relations with the Executive which worsened during Maraga’s tenure.

Also in her in-tray will be the stalemate over the appointment of 41 judges whom the President has refused to confirm.

For Justice Koome, who boasts of a 33-year-long experience, having practised law for 15 years before becoming a judge, just as he has told the JSC panel, her nomination to succeed Maraga is historic.