Don’t speculate on judges

The recent reshuffle of High Court judges has kicked up a storm. At the centre of it is Justice Mugure Thande, who famously suspended President William Ruto’s Finance Act. As ‘punishment’ for her ruling, so the story goes, she has been transferred to Malindi High Court, a legal backwater, so to say, compared to her then-station Milimani Constitutional and Human Rights Division.

I will concede from the outset that transfers can be used as rewards or punishment, for the simple reason that some places are more pleasant or prestigious to live and work in. This was especially true in the pre-2010 Constitution days.

 Justice Patrick O’Connor—who resisted Executive interference several times—was unprocedurally sacked in 1988 after defying a transfer from Nairobi to Meru. Possibly as well, the powers that be do not want independent-minded judges in Nairobi as most cases challenging Executive decisions are filed in the capital.

Transfer judges

But that is where the speculation must end. There is no reason to believe Chief Justice Martha Koome (whose prerogative it is, as head of the Judiciary, to transfer judges) is beholden to the Ruto administration. After all, having assumed office under the Uhuru Kenyatta regime, the current Executive couldn’t possibly have aided her ascension to office.

And there have been other ‘anti-government’ decisions under CJ Koome’s watch as well. Last month, a three-judge High Court bench declared President Ruto’s establishment of 50 chief administrative secretary (CAS) positions unconstitutional. If she is rewarding and punishing judges according to their subservience to the Executive, how is it that Justices Aleem Visram and Kanyi Kimondo (who ruled the entire 50 appointments illegal) have been retained in Nairobi while Justice Hedwig Ong’undi (who dissented) has been transferred to Nakuru?

Maybe Justice Thande is paying for her ruling. Maybe not. Why risk eroding public confidence in the courts by making sweeping conclusions on the state of judicial independence without evidence?

Mr Arori is an advocate of the High Court of Kenya. [email protected].