Why JSC Panel settled on Justice Martha Koome for Chief Justice

She would accumulate a wealth of experience that later proved worth in the execution of her duties as a magistrate and a judge. She served as the Treasurer of the East African Law Society between 1994 and 1996. Due to her unparalleled passion for children’s rights and advocacy, she was seconded by the African Union Heads of States as a Commissioner to the African Committee on Rights and Welfares of Children.

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Lady Martha Koome is awaiting to take over the mantle as the chief custodian and interpreter of the law, adding into our history book the mark of a woman’s print at the helm of the country’s judiciary.

JSC acting chairperson Prof Olive Mugenda on Tuesday announced the commission has unanimously agreed to nominate Justice Martha Koome as the next Chief Justice.

The Judiciary is now firmly run by females – acting CJ (Philomena Mwilu); Vice Chair JSC (Olive Mugenda); acting President Court of Appeal (Wanjiru Karanja); Principal Judge, High Court ( Lydia Achode ); Principal Judge, ELRC, (Maureen Onyango); Judiciary Chief Registrar (Anne Amadi); Registrar, High Court (Judy Omange); Registrar Supreme Court (Esther Nyaiyaki); Registrar JSC (Frida Mokaya).

Appellate Judge Lady Justice Martha Karambu Koome, who was yesterday recommended for promotion to succeed rtd CJ 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.

Apparently, the bad blood between the Judiciary and the Executive and rampant corruption within the courts are said to have played to Justice Martha 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.

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.

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.

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 to People Daily 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.

On the eve of the repeat of the 2017 presidential election,Koome stirred a national controversy , when, together with Justice Fatuma Sichale and Erastus Githinji, hurriedly convened a bench dead in the night only to quash the orders by Justice Odunga declaring that IEBC had irregularly hired returning officers.

The dire implications of Justice Odunga’s order – occasioned by Muhuri’s Khelef Khalifa’s petition – was that election results couldn’t have stood the legal test on the account of failure to fulfill the basic threshold of free, fair, credible, and verifiable polls.

In her defense when she appeared before the Judicial Service Commission for CJ interview, she claimed that she was acting on the orders of the then Court of Appeal President and the current Attorney General Mr. Kihara Kariuki, instead of former Chief Justice Maraga’s direction, ostensibly to avert what she termed as a constitutional crisis.

Before that, in 2013, she had written a dissenting opinion on the question of election date with the advent of the full operation of the new Constitution, arguing that any election date past January 2013 was outside the 5-year-parliamentary term and it would herald an unprecedented crisis for the country.
And yesterday, Lady Justice Martha Koome was unanimously recommended by the JSC for appointment to the position of the country’s Chief Justice and President of the Supreme Court – the first female in Kenya’s post-independent history.

With deep attachment to children’s rights as was evident in her interview with the Business Daily, Koome joined the Judiciary from private practice as a Magistrate in 2003, and was stationed in several parts of the country.

She would then be elected the Chairperson of the Kenya Magistrates and Judges Association in 2011, rising through the ranks to subsequently become Court of Appeal Judge in 2012. During the magistrates and judges vetting in 2012, she opted to be grilled in public to reaffirm transparency in her conduct and promotion.

She had previously spearheaded the establishment of the Family Division of the High Court and Chaired the National Council on Administration of Justice Taskforce that was looking into the status of children’s rights, consequently reviewing the Children’s Act and slamming a break on the hounding of juveniles in court by procuring laptops for virtual hearings from their remand houses.

In the quest for the search of Deputy Chief Justice in 2016 after the Kalpana Rawal retirement debacle, Koome was shortlisted for the position by the JSC before it was ultimately occupied by Mwilu.
Born in 1960 in a polygamous family of 18 in Kithiu village, Meru County, Martha Koome graduated with a law degree from the University of Nairobi in 1986, before proceeding to the Kenya School of Law for her postgraduate, completing in 1987 and consequently getting admitted to the bar as an Advocate of the High Court.

Venturing into private practice in 1988, she became a legal associate in Mathenge and Muchemi Advocates until 1993 when she set up her own firm as a principal partner. During the quest for multiparty, she was a renowned figure within the corridors of justice, procured by political detainees to represent them.

She would accumulate a wealth of experience that later proved worth in the execution of her duties as a magistrate and a judge. She served as the Treasurer of the East African Law Society between 1994 and 1996. Due to her unparalleled passion for children’s rights and advocacy, she was seconded by the African Union Heads of States as a Commissioner to the African Committee on Rights and Welfares of Children.

At one time, she was also a fierce Chairperson of FIDA at the forefront accelerating the achievement of justice and equality for women by providing free legal counsel and representation to the vulnerable and underprivileged ones.

And in 2010, she graduated with a Master’s Degree in International Public Law from the University of London, adding to her academic credentials a conferment that thrusted him to the fore of the country’s judiciary.

Certified by the International Institute for Justice in Maltha, Commonwealth Secretariat and the International Women Judges Association, she is a consummate human rights trainer who has written a variety of several academic papers on this field, contributing to the overall growth of the body of knowledge of the law- jurisprudence.

She is credited for several reforms within the judiciary, including the mobile courts to bridge the gap between pastoralists and the grinds of justice. In her own words, she believes that the independence of Judiciary is a sacrosanct principle that must never be negated whatsoever.
Today, Lady Martha Koome is awaiting to take over the mantle as the chief custodian and interpreter of the law, adding into our history book the mark of a woman’s print at the helm of the country’s judiciary.

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