How Martha Koome aced JSC test

Judging by the online reactions that greeted the nomination of Lady Justice Martha Koome as our 15th Chief Justice, the unanimous decision of the Judicial Service Commission to pick her out of the 10 contestants for the position was the right one.

With one fell swoop, the ten-year battle to meet the gender rule regarding composition of the apex court was more than met.

A chief justice, a deputy chief justice and a comrade of Martha Koome in the Second Liberation struggle, Njoki Ndungu, are all women.

Deputy Chief Justice Philomena Mwilu must feel more confident now that those fighting for her removal from her position will now have to contend with the might of the women and gender activists lobby which will not want to lose what they have fought so hard for.

Justice Koome had come to the interview well prepared and confident. Clearly, she had learned her lesson well from the last encounter with the Judicial Service Commission when she lost to her new deputy, Judge Mwilu, for the deputy CJ’s position.

She brings to the court a wealth of experience earned from more than three decades in the Judiciary, having served in the High Court, and Court of Appeal as well as being a frontline fighter for human rights during the KANU era.

She was among the band of Second Liberation Sisters led by her close friend and ally Martha Karua.

During the interview, she was hard pressed to justify her decision together with two other Court of Appeal Judges, led by the now retired Justice Githinji, where they sat outside the official working hours to stay a decision of High Court Judge George Odunga who had nullified the appointment of all the returning officers for the repeat presidential election in 2017.

She explained her decision by placing responsibility on the then Court of Appeal President and now Attorney-General Paul Kihara Kariuki, who had constituted the bench and had directed them to sit.

That Kariuki as the representative of the Executive in the Judicial Service Commission by virtual of his office, was now one of the interviewing panel, must have given her some solace.

But this is an issue that is going to be pursued further when her name goes to the National Assembly for vetting.

Indeed, Sheikh Khelef Khalifa who had filed the successful petition before Justice Odunga in the High Court has already given hint that he is still opposed to her nomination which he sees as unmerited and giving Mt Kenya region unfair representation in the Supreme Court.

Like the first chief justice under the 2010 Constitution, Lady Justice Koome comes from a human rights background but unlike Mutunga, she has had vast experience in the Judiciary having served in various stations of the High Court and also Court of Appeal.

This should serve her well as the president of the Supreme Court where administrative experience is of critical importance.

Her thirty-three years’ service as a judge portrays her as a centrist “don’t rock the boat’’ but firm and courageous judicial officer with whom the Executive arm of government will be comfortable with after the Mutunga and Maraga tenures in which the Executive saw the Judiciary as an ‘enemy’ to be tamed.

It remains to be seen though whether this side of her character will be able to persuade President Uhuru Kenyatta to swear the 41 judges who have been waiting to take their oaths of office.

The carefully selected sample judgments Lady Justice Koome submitted to the Judicial Service Commission demonstrate excellent ability in expression of issues for determination and a communication skill that is simple and understandable to litigants and their counsel.

Her human rights activism on women and children issues stands out, partly from her stint as Chairperson of FIDA and she did not shy away from defending her position on these.

Indeed, her judgments are most progressive on matters of widows and inheritance of property.

Her nomination will have to go to the National Assembly if the President submits her name, as he is required to do under the Constitution.

It is before the Legal Affairs Committee and the floor of the National Assembly where political dynamics are going to play out.

The polite, almost deferential interrogation of the Judicial Service Commissioners will give way to vicious display of power politics that characterise these interviews.

All the key political players in next year’s general election are well represented and the MP’s questions will reflect these dynamics.

Key concern is how she will lead her court in determining the presidential petition that is likely to be filed to challenge the election.

Members of Parliament will have been advised that their questions must be framed in a way that will not jeopardise their candidates’ chances of winning the Meru vote given that her nomination has received massive endorsement in the area going by the coverage in the County FM and TV stations.

Both Deputy President William Ruto and former Prime Minister Raila Odinga have targeted the significant Meru vote and they will not want to be seen as opposing her appointment to head the judicial arm of government.

Given the manner and style of presentation she exhibited before the Judicial Service Commissioners, the vetting in the National Assembly should not prevent the first woman Chief Justice of Kenya from being endorsed by Parliament.

The writer is a former Member of Parliament, an advocate and legal publisher.