Martha Koome takes another stab at CJ job

Justice Martha Koome

Justice Martha Koome.

Photo credit: File | Nation Media Group

Justice Martha Koome has taken another shot at being appointed the Chief Justice of Kenya. She unsuccessfully sought the office in 2016.

Even then, no objective person would say Justice Koome fell short of any of the measures by which a candidate for that office ought to have been weighed.

Justice Koome holds a Bachelor and Master of Laws degrees from the University of Nairobi. She was admitted as an advocate of the High Court in 1987 after which she practised as a litigator in a firm.

Shortly thereafter, she established a company which carried her name as founding partner.

While in private practice, she was heavily engaged in civil society work, focusing on human rights advocacy and especially on the rights of children and women.

In 2003, Martha Koome accepted appointment as a judge of the High Court. She worked in Nairobi and as resident judge in Kitale and Nakuru.

She was head of the Land and Environment and the Family divisions of the High Court in addition to a stint in the Commercial branch. 

In 2012, Justice Koome applied for and was appointed a judge of the Court of Appeal where she still serves.

She has served in Nairobi, Malindi and Nyeri as an Appellate Court judge.

Justice Martha Koome’s fitness for the administrative dimensions of the CJ is shown not just in her leadership of the High Court divisions mentioned earlier.

There is more. She has served the National Council for Administration of Justice as chairperson of the Special Task Force on Children.

In this role, Justice Koome led efforts to identify and highlight the plight of children in the justice system.

One of the results of this initiative was a review of the Children’s Act, aimed at aligning it to the Constitution.

Another product of this effort was the development of practice direction on dealing with children during the Covid-19 pandemic.

Professional output

The main strand in Justice Koome’s professional life is an unwavering commitment to the rights and welfare of those who would otherwise be forgotten – children and women.

She demonstrates a unique consciousness, whether in her advocacy before and currently in her focus and commitments as a person whose mission is to seek a realisation of rights for everyone, irrespective of social status.

If I were to use her professional output and approach of law to hazard a guess at her legal philosophy, Justice  Koome comes out as someone who appreciates that the lawyer really is a social engineer.

In other words, she appreciates and states that law has a purpose beyond the law books and courtrooms.

Justice Koome abhors the possible application of law as an instrument of power against the powerless or the majority against minorities.

That is clear form her alignment to the rights of children and women in an otherwise misogynistic society as Kenya.

This was manifested in several court decisions she made, particularly in the Family Division of the High Court regarding the succession rights of women and children.

At the Court of Appeal, Justice Koome has been party to judgments which displayed this concern for power and law projected towards the citizen.

An apt illustration is in the case where a citizen challenged the decision of a high-handed bureaucracy with regard to freedom of association.

In 2019, Justice Koome was part of a Court of Appeal bench that dismissed a case by the NGO Co-ordination Board against a finding in the High Court that the decision to decline a request for registration of an NGO, which sought to focus on the rights of lesbian and gay persons, was unconstitutional.

The judges said the unconstitutionality was that the decision was discriminatory and an unjustified hindrance to the freedom of association of gay and lesbian persons.

Justice Koome said in her judgment that it would be unfair to claim that lesbian and gay people are more prone to committing crimes just because they are a disliked minority.

She concluded her dismissal of the appeal with words to the effect that it is arbitrary to speculate and categorise a section of the society as persons with a higher propensity to destroy the institution of marriage or culture.

The boldness of the decision was a call to Kenya: rights are not meant only for sections of society whose activities and relationships enjoy the approval of the majority.

This and other judgments and pronouncements of Justice Koome show an important point that cannot be missed.

Her jurisprudence, if it may be described so, is not wedded ideologically to gender wars as to give her the unfair tag of “warrior”.

Rather, the thread is that her understanding and approach is that law must not serve unjust ends.

Put in a single sentence, Justice Martha Koome is a bright beacon in the belief that the rule of law is a principle of liberty, not restraint and oppression.

This is in smooth drift with the Constitution of Kenya but she believed in and lived by this throughout her professional life.

Even before taking office as a judge, Martha Koome by personality was a cultivated and poised advocate accredited with the willingness to listen to and engage professionally with opposing counsel.

Ideological posturing

In her judicial career, she has the distinction of being a judge who listens to advocates keenly and even more intensely where the litigants have no lawyers.

Patience being key for a judge and more so for a Chief Justice, this is a good attribute to make her a formidable candidate.

If note is taken of the fact that suavity in forging relations is also important for a CJ, Justice Koome’s cool demeanour taken in conjunction with her temperamental self-control might be what the country will need for a Chief Justice in managing relations within the Judiciary and with other branches of government.

Putting together all the strings of Justice Martha Koome’s professional experiences and innate abilities, one will get a humane individual who watches keenly for all, irrespective of their power or lack of it in society, a sceptic for the raw and unquestioned use of power and legal authority coupled with intelligence and managerial ability expressed with candour and grace.

This skillset puts the Appellate Court judge in good stead to serve as Chief Justice.

If the decision to be made were for a person whose constant north is that justice is the servant of all, devoid of partisan ideological posturing, the history of Justice Koome would proffer her candidacy this time round as just the person the country needs as Chief Justice.

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