Rough road ahead, for CJ designate Martha Koome

Justice Martha Koome

Court of Appeal Judge Lady Justice Martha Koome when she appeared before the Judicial Service Commission at the Supreme Court buildings on April 14, 2021 to be interviewed for the position of Chief Justice. 

Photo credit: Jeff Angote | Nation Media Group

When Court of Appeal Judge Martha Karambu Koome appeared before the Judicial Service Commission (JSC) on April 14, 2021, she was exceptionally confident.

While some candidates used conditional clauses like ‘if’ to state what they would do as Judiciary boss, a confident Justice Koome talked of ‘when’ appointed.

Many of her pledges were promising, but the line of questions from the Prof Olive Mugenda-led panel pointed to the difficult task awaiting the next Chief Justice.

Over the 10 days that the JSC interviewed distinguished legal professionals looking to fill the shoes of retired Chief Justice David Maraga, it was clear that one of the qualities they were looking for was someone who would lead peace talks with the Presidency, increase judicial staff, tidy up the corruption stink and enhance technology use in the courts.

Each of the candidates had to tell the JSC how they would diffuse a tense situation with the Executive, which has seen President Uhuru Kenyatta refuse to approve the nomination of additional judges to the superior and lower courts.

The Chief Justice hopefuls had to also divulge what they would do to enhance technology use in the Judiciary, which is desperately trying to improve access to the common man.

The JSC was also keen to know how the next top judge would exorcise the corruption demon that has left a strong stench, throwing doubt into the minds of many ordinary Kenyans as to the chances of actually getting justice in the courts.

The tension with the Executive has also seen the Judiciary’s budget remain modest, with most infrastructure projects being funded by donors like the World Bank.

The global economic slump caused by the Coronavirus pandemic could make it difficult for the Judiciary to get external funding, at least in the short term.

As the JSC also sought to know how candidates felt about past Presidential election petitions, it was clear that the panel was looking for someone whose philosophy of law will manage to walk the tight rope at a time when one judgment could plunge the entire nation into a state of anarchy.

In a country where every election cycle is followed by either petitions challenging results, or extreme violence between rival contestants, the Supreme Court will be in dire need of a Chief Justice that can assure the public that any matters that require wisdom of the five judges will be determined fairly.

At 4.25pm Tuesday, JSC vice-chair Prof Olive Mugenda revealed that her team had unanimously agreed that Court of Appeal Judge Martha Koome was the best placed individual to carry the judiciary on her shoulders comfortably and steer it ahead.

Some stakeholders believe that Koome’s success or failure as head of the Judiciary will be determined by her management skills, and not legal experience.

Victor Olao, a lawyer with experience in Constitutional matters, said that the justice system is in need of an individual who can go beyond legal qualifications in fostering relationships and fixing internal systems to enhance delivery of justice.

“To defuse this tension there is some form of wisdom and tact that one needs to use. Some of the problems facing the Judiciary are more administrative than legal. Justice Koome may have to employ more than her legal mind. We (the public) were not looking for someone who knows how to read the law. We were looking for a manager.”

“Things like corruption are not bad for everybody. There are people pocketing money from corruption. Remember the more people get arrested for corruption, the more work there is for lawyers. Justice Koome’s approach is what will make the difference,” Mr Olao said.

He adds that some of the solutions could reveal more than just whether the problems between the Judiciary and Executive stem from the former as an institution, or the individual calling the shots.

“If she goes to State House and the 40 judges (nominated by the JSC but pending Presidential approval) are appointed, does it mean that Justice Maraga was the problem?” Mr Olao paused.

Justice Koome has had a relatively decent run in management within the Judiciary.

Between 2003 and 2011 Justice Koome was a High Court judge, and in between she was posted to Kitale to serve as the Presiding judge.

She found a hostile situation where lawyers were unhappy with service delivery and had little faith in judges at the station.

To date, Justice Koome is hailed for restoring confidence of lawyers and litigants who had previously been served by judges they believed were unfriendly and hesitant to dispense with cases quickly, leading to unpleasant and expensive backlogs.

During her date with the JSC interview panel, Justice Koome said she would prioritise increasing staff from the current estimated 5,000 to at least 8,900 to hasten case determination.

The judge also promised to introduce a digital procurement system and put in place platforms for monitoring value for money whenever the Judiciary pays for any goods or services.

Interestingly, during her five-hour interview, Justice Koome said she is not aware of the existence of corruption in the Judiciary. She, however, held that the current systems in place are sufficient to deal with any wayward judicial officers.

“I can only talk for myself. The perception out there is that we (Judiciary) are corrupt. If there are people moving out there bribing judges and magistrates, we have structures that can deal with that,” she told the panel chaired by Prof Mugenda.

Some of the corruption and abuse of office claims have seen several complaints filed against judges. On average, the JSC receives 150 complaints against judges each year.

Among the prominent complaints in court are four filed against Deputy Chief Justice Philomena Mwilu for alleged abuse of office, tax evasion and fraudulent recovery of loan securities at collapsed Imperial Bank. One of the complaints was filed by Director of Public Prosecutions, Noordin Haji.

President Kenyatta has already submitted Justice Koome’s name for parliamentary approval and, if she gets the big job, she will find a long queue of magistrates waiting to complain about discrimination as they receive considerably less in salaries and do not enjoy trappings like security and hefty pension packages as judges do.

The Chief Justice nominee was part of a taskforce that negotiated improved pay terms for magistrates, but the resolutions from the talks are yet to be implemented.

On average, magistrates earn Sh96,000 each month.

The taskforce talks with the Salaries and Remuneration Commission, and which Justice Koome was part of, were to see the lowest ranked magistrates earn Sh123,000 monthly, with those in higher ranks getting up to Sh445,00 per month.

Justice Koome had said she would push for operationalization of the Judiciary Fund that came into existence with the 2010 Constitution, to plug financial deficits and enhance infrastructure development.

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