This past week, Kenya’s Judicial Service Commission trod a path that leads to history. It nominated for the first time a female candidate for appointment as Chief Justice. If approved by the National Assembly, Court of Appeal judge Martha Koome will be the first female and the 15th Chief Justice in the history of Independent Kenya.
Many would say this is way too late for a country in its sixth decade as an independent Republic.
Even then, Kenya is not the first to have a female Chief Justice in Africa. In 2007, Theodora Georgina Wood was nominated and approved for appointment as Ghana’s Chief Justice by consensus. Her tenure was marked by great milestones in cleansing of the Judiciary.
During Chief Justice Wood’s tenure, she faced the challenge of corruption within Ghana’s judiciary following an investigative journalist’s report that produced hundreds of hours of video evidence of corruption by judges to give favourable outcomes to litigants. The Chief Justice then took resolute action to redeem the image of the judiciary. This led to the dismissal of about 20 judges who had been found culpable. Before her retirement in 2017, Chief Justice Wood expressed her abiding belief that she was called to deliver justice without fear or favour as demanded by her oath of office, and her religious faith.
Justice Aloma Mariam Mukhtar was appointed the 13th Chief Justice of Nigeria by President Goodluck Jonathan in 2012. She said on taking office that she had inherited a judiciary ravaged by widespread perceptions of a “cash for judgment” institution, among other ills.
A few days after her appointment, Chief Justice Mukhtar went through a number of petitions that had been filed against judicial officers over misconduct.
Chief Justice Mukhtar led Nigeria’s national justice system in setting up a fact-finding committee to investigate the allegations of corruption against a High Court judge in Nigeria, which led to the suspension of the judge who had given an indubitably light sentence to a self-confessed embezzler of pensions. She also oversaw the dismissal of two judges for misconduct.
Dismissal of judges
This broom did not just target judges. She led the dismissal of court workers who leaked the substance of a judgment that was yet to be delivered.
On her retirement, Chief Justice Mukhtar analysed her time in that office in these words, “As long as the general public thinks that I have improved the system, that is my satisfaction.”
But it is not only in the area of administrative improvements that female Chief Justices distinguish themselves. As judges, they get to participate in the making of transformative decisions in their country.
Justice Brenda Hale, former President of the United Kingdom Supreme Court is one example. In 2017, the United Kingdom’s Supreme Court was called to decide on the powers of the Prime Minister in prorogation of parliament.
She led the Supreme Court in unanimously declaring that the courts have exercised a supervisory jurisdiction over the legality of acts of government since time immemorial.
This was against the backdrop of the Prime Minister’s contention that the power or prorogation of parliament was not amenable to judicial review. This effectively underlined the principle that there is no power or prerogative other than as established by law. This was a resounding decision resetting the constitutional principle that no power can escape the jurisdiction of court as to its legality.
Baroness Brenda Hale retired from the Supreme Court of the United Kingdom in 2020.
Australia’s Chief Justice Susan Keifel became Chief Justice of Australia in 2017 against more than just the odds of gender. She had dropped out of school at the age of 15 to work for a living, in light of the financial challenges in her family.
While working as a receptionist in a law firm, she went back to complete her high school while studying part-time, then took up a job as a law clerk while pursuing a law degree. Susan Keifel then got admitted to the bar in Australia and made her way as a renowned legal practitioner before she was appointed as Australia’s 13th Chief Justice in January, 2017.
Within the first year of her appointment to the office, she led the court in making a decision on the eligibility of dual citizens to be elected and hold office in Australia’s parliament. The court held that dual citizenship disqualified any person from being a member of Australia’s parliament unless the law of that other country completely forbade renouncing citizenship. This decision was momentous and contentious as one would imagine.
The United States of America is yet to have a female Chief Justice at the federal level.
But Chief Justice Lorna Lockwood was the first female Chief Justice of any state Supreme Court in the United States when she was first appointed in 1965. One notable decision she made was when she was in dissent.
In that case, the judges in the majority had held that a majority decision of the United States Supreme Court made by four Judges against three judges because two other judges had recused themselves, was not a binding decision on the other courts in the United States.
Chief Justice Lockwood was alone in exclaiming the absurdity of this reasoning. She said the state Supreme Court had no right to question the authority of the decision when the matter had been considered by an adequate quorum of the Supreme Court. She said that the constitution’s supremacy had to be upheld irrespective of personal discomfort with the outcomes.
The Supreme Court of India, my other favourite court, has never had a female Chief Justice. But in 1991, Justice Leila Seth became the first Chief Justice of a state High Court in Delhi. She served in this role for about two years. Chief Justice Seth had been the first female judge on the Delhi High Court.
Advocate for minorities
Prior to that, she had been an active rights advocate for minorities. Before getting to the bench, she had been a member of the law commission of India for about three years.
In this role, she led a fierce campaign to ensure that daughters and female children had equal rights to inheritance of ancestral property under India’s Law of Succession statute. Chief Justice Leila Seth continued with active engagement on human rights after leaving the bench. She was appointed as one of the members of a commission established in 2012 to review India’s laws on rape.
The above are just examples illustrating that Chief Justices are expected to perform irrespective of gender and that the few women who have had that opportunity have never disappointed those whose concern is with maintenance of the rule of law.
If Justice Martha Koome gets confirmed by the National Assembly and assumes that office, Kenyans will not be at a loss on what to expect.