Like a colossus, Chief Justice (CJ) Martha Koome stands out as Kenya’s first female head of the judiciary.
She has had a quiet entry, maybe from the training that judges only speak through their judgments or just her general demeanor. Or, she has a different approach that the government is not making the seat too hot for her to catcall and curse just as her predecessors did.
Kenya’s first Chief Justice under the 2010 Constitution, admitted that bandits lead Kenya. Her predecessor, Justice David Maraga, had a frosty relationship with the parliament and executive. He once said in public that his mobile calls to President Uhuru Kenyatta went unanswered.
He poked Parliament’s eye by recommending it should be dissolved for failing to meet the two-third gender rule. Maraga left with a bitter taste lingering on his tongue.
Back to Koome, she clocked 100 days in office on September 2, 2021 and opened a rare glimpse of how the judiciary’s has been operating from when she was appointed as the third Chief Justice under the 2010 Constitution and the first woman to head the judiciary.
Her seat, green in color made of soft sponge wrapped in leather and wood- a contrast of smooth and hard life she now has to strike a balance.
On the soft side, her diaries are taken care of, she is driven in a motorcade whose flashing lights and cacophonous siren means she cannot be stuck in traffic jams.
On the other hand, the hard life sinks in while carrying the burden of a judiciary accused of activism, which has a frosty relationship with the executive and parliament and does not have enough judges and sufficient budget.
Dealing with corruption
Koome is a CJ at a time when corruption is a very big problem in Kenya. Worse still, many corrupt people have found a way to escape the justice system. She however sends a warning to corrupt individuals saying that there are no sacred cows.
Justice Koome added that graft cases should be determined faster and no one in government will enjoy leniency or will be handled with golden gloves when produced before a court over criminal acts.
She wants to build a new headquarter for the judiciary and a training institute that will sit on 55 acres of land in Ngong. At the same time, she is digitizing courts, Google has pledged Sh 100 million for the project.
She narrated that a consultant pocketed Sh 45 million only to hand the judiciary a one liner that they needed a judiciary police unit to enhance judges and court premises security.
When she got in office, she just walked in to the office of the president and walked out with a team of 3000 police officers permanently attached to the court.
Little has changed in the Supreme Court building. The isles to the CJ’s reception have the same deep yellow and crème paint. A wooden clock labeled London and portraits of Kenya’s former Chief Justices are the things that kill the monotony from the eyes.
There are also portraits of pre-indepent CJs and those who occupied the office in independent Kenya. Willy Mutunga is the last Kenya’s CJ to have his portrait hanged in the wall of the path.
It is more than 100 days and yet the immediate former Chief Justice David Maraga’s portrait is not among them.
Sir Robert William Hamilton served from 1905 to1920. Others that conclude the pre–1963 list are William Barth, Joseph Sheridan, John Harry Barclay, Harace Hector, Kenneth Kennedy and Ronald Ormiston.
Meanwhile, Sir John Ainley was the first Chief Justice in independent Kenya. He presided over the swearing of founding President Mzee Jommo Kenyatta and served up to 1968.
Then, Arthur Dennis Farnel took up the mantle serving only for two months, May until July 1968. Farnel occupied the office of the Chief Justice for the shortest period in Kenyan history. He got himself into trouble with the authorities of his time when he reduced a one-year sentence passed on to the late Bildad Kaggia to six months.
Bildad Mwaganu Kaggia was a Kenyan nationalist, activist, and politician. Kaggia was a member of the Mau Mau Central Committee. After independence he became a Member of Parliament.
Farnel was unceremoniously hounded out of office in July 1968 and replaced by Kitili Maluki Mwendwa. Aged 39 years, Mwendwa was by any measure the youngest CJ Kenya has ever hired and the first African to be the head of the judiciary. He too left the office in 1971 under a cloud of suspicion following a coup by the military.
Other CJs were James Wicks, Henry Simpson, Chunilal Bhagwandas Madan, Guyana born Henry Ethelwood Miller, Robin Winston Hancoc, Fred Kwasi Apaloo, Abduh Majid Cocker, Zacchaeus Chesoni and Evan Gicheru.
On the right side of her door, a portrait written ‘wind of change’ attracts your attention. She came in as the first CJ with a promise to change. In her 18-page promise dubbed 33 years of unwavering service to the public, she promised to build an accessible, efficient, independent justice system, and continue transforming the judiciary.
She is dressed in a silver color coat, with a small patch of gold. Her watch, black in color, has some silver on the straps.
Koome’s 100 days
Her golden moment in 100 days is resolving the stalemate, which Maraga left without seeing eye to eye with President Uhuru Kenyatta. A visit to Kisumu during this year’s Madaraka day gave her a glimpse of what a horrid judiciary she inherited.
“I was taken round the registries and shown the number of appeals that were ready for hearing, but no dates could be given because of shortage of judges. At Environment and Labour Court, the story was worse,” she explained.
Even the Supreme Court building, which now houses her office, is leaking. She says the monumental structure built-in 1935 to house only seven judges has not enough toilets.
There were 11 judges in the Court of Appeal and it had suspended its courts in Kisumu, Mombasa and Nyeri for two years over judges’ appointment stalemate. At Environment and Labour Court, the story was worse. The only Judge in Kisumu was covering Kisumu, Siaya and Nyamira counties. Meanwhile, the judiciary has 5,000 employees instead of the required 9,000.
She wrote a letter to Kenyatta on June 3, 2021, asking for an urgent meeting and detailing three issues, the administration of justice, how to use judiciary funds, and the budget allocated to the judiciary. The meeting did not materialize.
Koome is happy that on June 4, 2021, the president appointed 34 more judges a day after she sent him the letter. She hopes that the remaining four will also be appointed. I thanked His Excellency for this appointment and pleaded with him to similarly appoint the remaining 6 Judges,” she narrates.
On her table during the interview was a notebook, the 2010 Kenya Constitution and an iPad, which she constantly referred to whenever I asked questions. However, she never opened the constitution.
She explained that any stormy issue can be resolved without shouting at each other or issuing sanctions. However, she said, the judiciary is independent and will remain that way when she is on the reign.
Koome has turned around a stormy issue of judiciary funds and now the third arm of government will manage its funds independently from December 2021.
She said the director in charge of data told her the number of cases filed has gone up, an indicator that Kenyans are confident about her and the number of cases being determined by judges and magistrates has increased. According to her, the court case backlog is clearing, but only slowly because of Covid-19.
She now wants judges and magistrates to clear cases within three years. On appeal, she has instructed judges to clear the cases within a year. David Maraga’s timeline was five years.
“In all my meetings with them I have always said that the power that resides in the Office of the Chief Justice has been delegated to all staff and they should therefore discharge their functions knowing that they are ‘chief justices’ in their own right,” she continues.
She sits right in the middle of two flags, Kenya’s and that of the judiciary. To her, just as the two balance the aura of the room they should be fair to those who dispense justice. She says that although judges can sin, they should not be dragged and shamed by being arrested inside courtrooms and their chambers.
Koome revealed that she sought dialogue on a procedure to arrest judges and magistrates. Investigators will now go to the Judicial Service Commission, give evidence and the suspect will be required to answer the claims.
Thereafter, the commission will give the green light for arrest. Court of Appeal judge Sankale Kantai has sued the Directorate of Criminal Investigations over embarrassing arrests while High Court justices Aggrey Muchelule and Saidi Chitembwe were arrested in court premises.
She continues, “This was an unfortunate event as judges and judicial officers ought to be accorded the necessary respect that is commensurate with their offices and the judicial functions they discharge.”
“It is in this regard that we have engaged the ministry of interior and coordination of National Government and we have developed a clear protocol to be used by criminal investigative agencies when they need to interrogate and process any judge or judicial officer.”
Rise of women in the judiciary
Meanwhile, she disputes that feminism has taken over the judiciary. She takes on critics saying that they should accept the wind of change with women leading as once upon a time justice was an all-men affair.
Sometime in 1998, a team of 15 women lawyers smiling for the camera preserved a moment.
They were members of the Federation of Women Lawyers (FIDA), which chiseled its name by standing for the marginalized people by prosecuting their cases even when powerful forces wanted such violations hushed up.
FIDA sent chills down the spines of many irresponsible fathers and those accused of battering their wives and children.
Also on their cross-hairs were men who tried to disinherit their sisters and children. Over time, the lawyers took different paths but apparently, fate has brought them together again.
The former FIDA members are now major players in the dispensation of justice, not just peripheral bystanders pointing out abuses and violations of the law.
In the group picture taken 23 years ago, the FIDA council at the time consisted of Justice Martha Koome, Nancy Baraza (later became deputy CJ ), lawyers Betty Murungi, Alice Wahome (who is now Kandara MP), Njoki Ndung’u who is now a Supreme Court judge, Abida Ali Aroni who is a Family Court judge and Labour court judge Monica Mbaru and lawyer Judy Thongori.
Justice Koome joined Justice Njoki Ndung’u at the Supreme Court while Justice Abida and Mbaru serve in Family and Labour courts.
Justice Koome is happy that more women have joined the justice system and she is encouraging more to join them.
Presidential repeat election
Justice Koome has had a big impact on Kenyan elections. In 2017, she, alongside Justices Fatuma Sichale and Erastus Githinji, overturned a High Court verdict that had technically crippled Kenya’s repeat presidential election.
High court Judge George Odunga ruled that the gazettement of 271 Returning Officers and their deputies by the Independent Electoral and Boundaries Commission (IEBC) was illegally done and violated the Elections Act. They were appointed just a day before the 2017 repeat presidential election.
However, hours after he had delivered the judgement in favour of activist Khelef Khalifa, Court of Appeal judges who included Koome, Fatuma Sichale and Erastus Githinji suspended the order and the elections went on.
The decision stoked a complaint by Khalifa, who accused the three – among other things – of issuing the ruling without giving him a chance to reply. He also claimed that they sat to hear the matter after the designated office hours. She however disputes that they sat in the night.
Justice Koome explained that the Court of Appeal registrar informed her that the then president of that court, Justice Paul Kihara, who is the current Attorney General, had constituted a bench of the three and had certified the appeal as urgent. Erustus Githinji, who is now retired, was presiding.
“The day before that election was a public holiday. I was called by the registrar of the court, a Mr Serem, and told that the president had certified the matter urgent and had constituted a bench of Sichale, Githinji and myself to hear it,” she narrated.
Koome says she was answerable to Justice Kihara who had directed that the appeal be heard the same day and outside the working hours.
If God keeps her at the helm for nine years, Koome said, she wants to be remembered as a judge who enlightened Kenyans on their rights, showed them how to resolve cases before going to court, and gave them access to efficient justice.
She says Mutunga and Maraga wired the justice system; she is now plugging it into place. As the tradition, her successor will also place a portrait of her on the hallway when she exits the seat.
What journalists should do:
- Observe keenly how corruption cases are handled now under CJ Koome’s leadership as compared to before.
- Follow up court cases backlog to find out if there is a significant change.
- Analyse the relationship between the judiciary, parliament and executive. What has changed? Are they in better terms or still antagonizing each other?