Two months after Martha Koome was sworn in as the country’s 15th Chief Justice, her court is slowly taking shape. Gloves are now off and a tough talking Koome is slowly emerging, stamping her authority in the corridors of justice.
On Friday, Justice Koome talked tough at the National Council on the Administration of Justice (NCAJ), which was attended by all State actors, including Interior CS Fred Matiang’i.
During her inaugural meeting, Justice Koome stressed the need for collaboration by all stakeholders in the justice system, which are independent but also inter-dependent.
The meeting discussed the reintroduction of instant fines for traffic offenders, fast-tracking of graft cases, prison de-congestion, review of cases involving children and the establishment of more Small Claims Courts.
Before that, Justice Koome, as the President of the Supreme Court, presided over the inaugural session of the country’s top court.
She used the occasion to call on advocates to engage with the bench “robustly and skilfully as they can,” but remember the importance of civility.
“Thus, where one has a different opinion, it will be expressed in a manner that respects the adage of “disagreeing without being disagreeable”.
Allowing judges to decide the substantive issues instead of diverting their time to side shows of who has crossed the line to disrespect and undermine the dignity of the court,” she stated.
She also used the session to give directions on the landmark Muruatetu case, which judges and magistrates have used to give varying interpretations and sentences to capital offenders. The CJ and the Supreme Court directed that the case only applies to murder alone.
To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under Section 40 (3), robbery with violence under Section 296 (2), and attempted robbery with violence under Section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached,” the court stated.
Before she was appointed the country’s first female CJ, Justice Koome had presented a paper where she decried confusion created following the landmark case, as convicts including those sentenced to death for robbery with violence or life imprisonment under Sexual offences Act, flocked courts seeking sentence re-hearing.
A week earlier, Justice Koome had transferred more than 30 magistrates among them Nairobi’s Chief Magistrate Francis Andayi and his anti-corruption counterpart Douglas Ogoti. She had also decentralised the Court of Appeal to Kisumu and Mombasa after a hiatus of more than two years for lack of judges.
Justice Koome also assigned newly appointed judges of the Environment and Land court, sending them to stations across the country.
Lawyer Adrian Kamotho believes that she has started on the right footing, especially by calling on Parliament and the Executive to have healthy engagements as opposed to fighting each other.
Mr Kamotho urged the CJ to consider fully reopening courts, arguing that there are cases which have stalled for one reason or another.
“Now that proper containment measures have been made, vaccination and following Ministry of Health protocols are in place, it is time she considered an open court session,” he said.
Lawyer Lempaa Suiyanka agrees that Justice Koome has started off well but advised that she should follow Justice (retired) Mutunga’s style of expressing judicial independence through “judicial pronouncements” as opposed to press conference, which Justice Maraga chose when he felt frustrated by the Executive and Parliament.
“She appears to like engagement with other arms of the government, which is a good thing,” he said.
During the NCAJ meeting, Nairobi Metropolitan Services Director-General Mohammed Badi promised to construct five more Small Claims Courts in informal settlements in three months.
Justice Koome said her vision was to see an enhancement of collaboration and cooperation in the activities of the justice agencies to power her transformative social justice vision for Kenyans.
“This does not mean that our agencies are not independent; but it is out of the reality that it is only through coordination of our activities that we can attain efficiency and resolve systemic problems in the pursuit of our common goal of effective delivery of services to Kenyans.
Last week, Justice Koome sent a strong warning to Parliament when she questioned the mandate of the legislature and its committees to oversight the Judiciary and Judicial Service Commission (JSC). Justice Koome blocked Chief Registrar of Judiciary (CRJ) Anne Amadi from appearing before the Public Accounts Committee (PAC) of the National Assembly to respond to audit queries.
Ms Amadi, the accounting officer of Judiciary, was required before PAC chaired by Ugunja MP Opiyo Wandayi to explain the irregular long acting appointments at the Judiciary.
At least 10 Judiciary officers have been acting for more than 10 years with no indication when they will be confirmed, an issue that has been flagged as a violation of Judiciary Human Resources Policies and Procedures Manual, by Auditor-General Nancy Gathungu in the 2018/19 audit report of the accounts of Judiciary.
However, in a stinging letter to National Assembly Speaker Justin Muturi and his Senate colleague Ken Lusaka, Justice Koome claims that part of parliamentary oversight borders on harassment.
LSK President Nelson Havi described the CJ letter as contemptuous to parliament.
“The CJ’s actions undermine constitutionalism and the rule of law. Judiciary and JSC are independent but accountable to the people through parliament. Her inability to apprehend these fundamental tenets of separation of powers underscores a leadership concern on her part,” Mr Havi said.