Office of the Chief Justice and its many unwritten functions

Chief Justice Martha Koome took the oath of office on Friday, May 21. In law, this was sufficient for her to be considered to have taken the office. However, on Monday this week, the Judiciary held a ceremony for the assumption of office by the Chief Justice.

At the Monday function, which, though not strictly a requirement of law, the Chief Justice was vested with the “instruments of power “of the office.

Among other instruments given to her at this function were a copy of the Constitution, the strategic plan of the Judiciary and the “Judiciary Flag”. This ceremony also included the Chief Justice inspecting a guard of honour of the Kenya Police Service! A first for any Chief Justice in Kenya.

Having the Chief Justice inspect a guard of honour may be a surprise to many.

Constitutional optics

Suffice it that its constitutional optics may be chilling for legal purists on the independence of the Judiciary in showing this level of amity with the Executive.

These concerns may be farfetched but not altogether without precedent.

An example would be Justice Harlan Stone, who served in the United States Supreme Court between 1954 and 1971. Justice Stone was so conscious of the need to demonstrate independence from the executive that he stopped voting at elections during his tenure.

With regard to the executive, he persuaded the other judges of the Supreme Court to stop attending a traditional meeting at which they would visit the White House to pay respects to the president.

Persons persuaded by this level of constitutional purity may have thought about the optics of this function with some unease.

But an answer to this is that a Chief Justice has many functions to perform with the authority of that office and which may be exercised in many ways.

On the day Justice Koome was taking the instruments of power, her counterpart in Uganda was engaged in a different exercise that involved sharing of responsibilities among the three arms of government.

Following the elections held in Uganda in January this year, Uganda’s parliament met for the first session after the election.

The first order of business was the election of the Speaker.

Chief Justice Alfonse Owiny-Dollo presided over the election of the Speaker of the 11th parliament, at which Jacob Oulanyah was elected the Speaker and sworn in by the president upon election.

Nevertheless, the relationship between the arms of government were not that cordial everywhere.

Supervising compliance

 In American Samoa, the Chief Justice had a very different function following an election in that country.

Chief Justice Satiu Simativa Perese went to parliament with a different mission. It was to supervise and confirm whether there had been compliance with the order of the Supreme Court that parliament buildings be opened on the Monday for the purposes of swearing in a new prime minister.

The conflict had arisen after an election in which the party that had been in power for almost four decades in Samoa had lost an election.

The prime minister’s party had issued a proclamation to suspend the opening of parliament that was challenged and declared unconstitutional by the Supreme Court. The court had also ordered that the Parliament House (known in Samoan language as Fale Fono) be opened so that the new government may be sworn in.

Deliver copies of judgment

The Supreme Court had also directed that copies of the judgment be immediately delivered to the clerk of the legislative assembly, together with the attorney-general and the Head of State.

Chief Justice Perese along with all members of the Samoan judiciary walked from the courthouse to the doors of the Parliament House to convene as ordered by the Supreme Court the previous day. On arrival at the parliament, Chief Justice Perese reached out his hands to open the doors. This was a symbolic stance to follow the rule of law taken by the judiciary to send a strong message to the other two pillars of Samoa’s democratic government – “that they stand by the rule of law, enacted by parliament, set down by the courts, and implemented by the executive,” as described by a commentator who watched the walk on that day.

Communicator and mentor

In the United States, Chief Justice John Roberts was exercising another function of a Chief Justice and signifying another. That is, the functions of communicator, mentor to younger professionals and builder. In a commencement address to graduating students at Georgetown University in the United States, CJ  Roberts explained the essence of law. He said that law is a means of “limiting power through reason”. He then challenged the graduating students to go forth in service of a higher purpose of the legal profession in whatever career path they took in law.

But above all, the main function of a lawyer, Justice Roberts said, was limiting power.

“Resolving disputes according to reason embodied in the law can involve a lot more work than leaving it all up to power,” he said. “But limiting power through reason is a rare and special thing in the world, and worth the work.”

Drawing from the perspectives of masonry, Chief Justice Roberts told the young lawyers that the profession required an appreciation that lawyers do more than more than just earning a living, more than just following instructions; that the act of law was like building a cathedral.

Then this same week, another newly appointed Chief Justice was in the act of the traditional judge and social reformer.  Chief Justice Nuthalapati Ramana of India was appointed to that office in April this year. This week, he was part of a bench of India’s Supreme Court, which made a judgment in a criminal appeal in that court. The judgment in the appeals by Nathu Singh against the State of Uttar Pradesh reflected on an appeal an important observation on the power of the court to ensure justice in the context of anticipatory bail. The court said that the judges should not be oblivious of the circumstances on a daily basis in the process of adjudicating upon cases. In this sense, they were stating that the courts exist for the purposes of administering justice to the litigants as their core function.

The foregoing examples show that a Chief Justice has many functions, most of which are not necessarily prescribed in writing.

Power and influence

In the United States, for example, it is held by many constitutional scholars that the office of the Chief Justice of the United States ranks only second to the President in importance and prestige. Its power and influence, however, is like the presidency – what the holder makes of it rather than what the letter of the constitution imbues to the office.

As the citizens of Samoa supported Chief Justice Perese this week, so also should Kenyans support Chief Justice Koome in upholding the functions of counsellor, the communicator and championing the rule of law in all its separate respects.

The writer is Head of Legal at Nation Media Group PLC