Martha Koome

Lady Justice Martha Karambu Koome takes oath of office as the new Chief Justice of Kenya at State House, Nairobi, on May 21, 2021. A High Court ruling requires her to swear in six judges if the President does not do so in 14 days.

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Martha Koome's dilemma as ruling flies in the face of diplomacy strategy

What you need to know:

  • The matter is likely to put CJ Koome on a collision course with the Executive, just like her predecessor David Maraga.
  • Justice Koome has reiterated her call to the President to appoint the six judges, saying that all candidates nominated by the JSC must be appointed in accordance with Kenyan law.

All eyes are now on Chief Justice Martha Koome and the Judicial Service Commission (JSC) on whether they will implement a High Court judgment that allowed the side-stepping of President Uhuru Kenyatta in appointing judges.

Having opposed the case filed by activist group Katiba Institute seeking to compel President Kenyatta to approve the nominations of the six judges, the CJ could be facing the biggest test in her tenure.

The matter is likely to put her on a collision course with the Executive, just like her predecessor David Maraga, who retired while still on bad terms with President Kenyatta over the delayed appointment of 40 judges.

Chief Justice Koome and the JSC wanted the court to dismiss the case. But attention has now shifted to their side after the court ruled that they are at liberty to take the necessary steps to swear in the six judges omitted by the President if he refuses to do so within 14 days.

In their joint opposition to the case, they said the petition was bad in law, defective and an abuse of the court process.

They also opposed the Katiba Institute’s request for an order to stop the assignment of duties to 34 judges selected by President Kenyatta in June this year.

Justice Koome has reiterated her call to the President to appoint the six judges, saying that all candidates nominated by the JSC must be appointed in accordance with Kenyan law.

Difficult choice

On September 3 this year, on a radio talk show, the CJ said talks were underway to ensure the six judges were appointed to their respective superior courts.

However, the court's judgment came before the claimed talks could yield anything.

Legal experts say that although the judgment may throw her into a war with the Executive, it will give her the opportunity to stamp the independence of the Judiciary and contribute to the growth of the country's jurisprudence.

"The court has given the CJ the licence to do what the Executive has failed to do. She has no option but to perform the function. This is a good judgment for the rule of law and maintenance of constitutionalism in Kenya," said Dr John Khaminwa, a seasoned High Court lawyer.

In his view, the Chief Justice will have to make the difficult choice of siding with the Executive against her judges or with the judges against the Executive.

"She could be in a tight place but she has to obey the court orders. Kenyans are looking up at her to ensure the rule of law supersedes,” Dr Khaminwa said.

“It is not the first time the Judiciary is stepping in to craft a way of addressing failures of the Executive. The jurisprudence started in United States of America during the fight against slavery."

Disobeyed the Constitution

Another lawyer, Bernhard Ng'etich, said the judgment offers the CJ an opportunity to shake off any “perception of dalliance with the President”.

"The Chief Justice now has a lifeline to shake off any perception of dalliance with the President by monitoring and ensuring compliance with the judgment with military precision. She gains more by ensuring it is implemented," he said.

In his view, the judgment is a sound invention to implement the Constitution against "a President who has tried unsuccessfully to overthrow the Constitution" by failing to appoint the judges for two years despite a court order.

"The President has disobeyed the Constitution on this aspect for more than two years. He is in contempt. He has no luxury to decide which portion of the Constitution of Kenya to implement and which one to discard," Mr Ng'etich said.

In coming up with the decision to sideline the President, the three-judge bench based their ruling on a judgment made by a five-judge panel in 2016, who held that the appointment should be made within 14 days of receiving the nominees' names.

That ruling was not appealed against. A similar declaration was made in 2020 by another three-judge bench.

Swearing in the judges

The court also found that there is nothing in the Constitution nor legislation that requires that judges be sworn in before the President.

The bench comprising justices George Dulu, William Musyoka and James Wakiaga found that the current practice of swearing in judges before the President is not founded on any constitutional or statutory law.

"We are of the view that it is perhaps founded on tradition, based on his role as Head of State. The tradition and practice in Kenya is that judges are sworn in by the Chief Registrar of the Judiciary in the presence of the President," they said.

They found that there is no constitutional and legal framework for requiring that judges be sworn in before the President.

They also said that since the President failed to follow the tradition or practice to have them formally appointed through gazettement, and thereafter sworn in or affirmed before him, the court could deem them to be duly appointed.

"We have not seen any constitutional or legislative provision, and none has been pointed out to us, which would bar the Chief Justice from swearing the judges, for there is no provision anywhere which gives the President a constitutional or legal role or mandate or duty in the swearing of judges. This then leaves it open for their swearing-in before the head of the Judiciary," the court said.