No easy task for new CJ Martha Koome

By now, everyone is trying to tell the new Chief Justice how to do her job and she must be mighty tired of the whole thing already. Nevertheless, I, too, will put in my 50 cents’ worth, mainly because that is a job with responsibilities equal to those of the presidency without all the glamour and razzmatazz, and also because her interpretation of the law as first among equals is bound to have great ramifications on the direction the affairs of this nation take.

Not only will she be expected to unravel the many constitutional crises that are bound to erupt now and then in the next decade – unless she retires before she is 70 – and, she will be expected to do so with great tact finesse.

Although she has been an appellate judge for the past seven years, it is early days yet to tell Lady Justice Martha Koome’s temperament or jurisdictional acumen. She may well turn out to be a creature of the establishment like her predecessors who were appointees of the president without tenure of office, or she may decide to be a transformative Chief Justice.

Alternatively, she may opt to become confrontational like her immediate predecessor, Mr David Maraga, the man who made history by nullifying the 2017 presidential elections. The choice, obviously, is hers alone.

However, one thing should be clear from the word go: there may be two arms of government, but in reality Parliament and the Executive hold the purse-strings and, therefore, call all the shots.

This is not to suggest that the next CJ should kowtow to the Executive in all matters but there should be an element of diplomacy in the interaction between them. This has never been an ideal situation, but unless the Constitution is changed to make the Judiciary financially independent, nothing much will change.

One thing that Mr Maraga did that watered down all his otherwise admirable efforts was to antagonise both the presidency and Parliament. He won accolades in the continent through his bravery in nullifying the 2017 election, but then when, in the final days of his tenure, he attempted to have Parliament dissolved because MPs had failed to enforce the two-thirds gender rule, he lost it altogether. A good CJ, unless he or she was intent on playing to the gallery, would have tried to navigate the way forward without losing face or goodwill.

Elusive justice

The second thing the next CJ should note is that justice is still elusive for the poor. The general perception that it is for sale to the wealthy, which is why they get away with plunder and even murder, means that the Judiciary still ranks very low in ordinary people’s perception. It is not expected that CJ Koome will alone change that overnight, but she will earn a great deal of goodwill if she leads her team in reforming the Judiciary, albeit for the umpteenth time. It will be a Herculean effort to clean up the Augean Stables that are our Judiciary, but one hopes she will be equal to the challenge.

** * *

In the relatively short period I knew legendary journalist Philip Ochieng personally, his mentorship turned out to be a valued learning experience. I worked with him thrice, first in 1990 when he poached me from The Standard to work for The Kenya Times, and then at the soon-defunct single-purpose rag, The Weekend Mail, which was owned and used by State House functionaries as a propaganda tool for President Moi during the first multiparty elections in 1992. In the event, Moi “won” his fifth term mostly due to the fragmentation of the opposition, State-sponsored violence and vote fraud. He was to win a sixth term in 1997 in similar circumstances.

But what has all this to do with Mr Ochieng? As the editor of The Kenya Times, Philip defended the single-party regime to the hilt. However, in other respects, he always strived to be professional, which was akin to navigating a landmine.

 It was miraculous that he lasted that long in an environment so toxic it would have driven anyone to drink. By the time The Kenya Times died, having become a scandal sheet, he was long gone and it must have hurt him badly to be accused of authoring the infamous “Kanu Briefs”, done in collaboration between the Moi Secret Service and a few co-opted “journalists” led by one Jeremire Araka.

For whatever it is worth, I will forever be grateful to Philip, first because I became interested in journalism in the 1970s after reading the lively debates between him, university don William Ochieng’, Prof Mahmood Mamdani, Prof Issa Shivji, Prof Ali Mazrui and the great Guyanese Africanist Walter Rodney. 

Of course around then I was just a callow youth who was reading stuff beyond his comprehension, but I was never to forget the lofty ideas delivered in elegant prose. For this, and many other reasons, Philip will always occupy an important place in my career, and I sincerely hope that at the Pearly Gates, he won’t try to correct some angel’s syntax.

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