Faces to watch in Judiciary in year of elections and petitions

Supreme Court Building, Nairobi, June 2020. [Boniface Okendo, Standard]

As Kenyans usher in a New Year, a lot of focus will be on the judiciary's decisions which could shape what promises to be a charged electioneering year.

All eyes will be on Chief Justice Martha Koome on how she will lead her troops from the Supreme Court, Court of Appeal and High Court in determining not only cases that would impact on the elections but also on the country’s economy and civil disputes.

As head of the judiciary, the chair of the Judicial Service Commission (JSC) and president of the Supreme Court, Justice Koome’s plate will be full as she seeks to deal with pressure from the Executive, the public and politicians in steering the wheels of justice.

Lawyer Duncan Okatch notes that it will be a defining year for Justice Koome as the focus will be on how she demonstrates her leadership skills to steer the judiciary in handling electoral disputes.

“The CJ wields a lot of power in terms of her school of thought and philosophy which will almost create a control that will trickle down to the Court of Appeal, High Court and Magistrates Courts.

"It is why all eyes will be on her as this will determine her success or failure,” said Okatch.

Okatch added that what the public would want to see are the changes the CJ would initiate and her leadership during presidential election petition and other electoral disputes which would end up before the Supreme Court.

The Supreme Court, being the final arbiter in all legal disputes and with exclusive mandate to determine presidential election disputes is expected to play a key role in shaping 2022.

According to lawyer John Mwariri, the seven judges at the Supreme Court will be the most important people to watch within the judiciary given that their decisions would change the directions the country takes.

“The seven judges of the Supreme Court are the most important people to watch in the judiciary in 2022," said Mwariri. "They hold the key to any dispute and our hope is that they will rise to the occasion and protect human rights.” 

Chief Justice Martha Koome. [Courtesy]

The apex court has CJ Koome, her deputy Philomena Mwilu, Judges Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.

Even before the election petitions start, the seven judges will be in action from January 18 to 20 when they determine appeals by the Attorney General (AG) Kihara Karuiki and Independent Electoral and Boundaries Commission (IEBC) over the Building Bridges Initiative (BBI) to amend the 2010 Constitution.

Although their decision on the BBI could be of little significance in shaping the August election, it could provide a foundation for any future push to amend the Constitution through a popular initiative.

Daniel Musinga, the Court of Appeal president, will be the next judge to watch given his powers to appoint a bench that determines any dispute emanating from the High Court.

As the man in charge of the second-highest court, Justice Musinga will be required to lead from the front like he did during the highly contentious BBI appeal when he presided over the seven-judge bench that upheld the High Court decision to stop the Constitution of Kenya (Amendment) Bill, 2020.

Lawyer Morara Omoke stated that just like any member of the judiciary, Justice Musinga and the Appellate court will play a key role especially when looking at the historical disputes between the Judiciary and the Executive.

“As part of the judiciary, we will be looking at them on the standards they will apply on resolving disputes, whether they raise the bar higher or if they will lower the bar and quality of judgements from the court,” said Omoke.

At the High Court, Principal Judge Lydia Achode will play a key role in how the court is managed and in assigning of judges who will handle election petitions involving governors, senators and Members of the National Assembly,  Woman Representatives and MCAs.

But before the election, focus will be on two High Court divisions; the Constitution and Human Rights Division and the Judicial Review Division with Justices Hedwig Ong’udi, Anthony Mrima and James Makau.

“Constitution division being the first point of call in constitutional disputes will be the most important court to have an eye on," said lawyer Adrian Kamotho.

"Like now when the election-related laws are being passed in Parliament, any dispute will end before the judges and their decisions will be very important.” 

The Supreme Court is expected to play a key role in shaping 2022. [Courtesy]

Although he is not a member of the Judiciary, the person to watch when it comes to criminal prosecutions will be the Director of Public Prosecution Noordin Haji who has the constitutional mandate to approve or reject all criminal and corruption cases.

According to some lawyers, the DPP’s office is the most powerful in the criminal justice system since the liberty of any suspect depends on his signature to approve a charge and determine cases that go to the magistrates' courts. 

“All eyes are always trained on the DPP because of the power he wields within the criminal justice system,” said Senior Counsel Kioko Kilukumi.

"It is also the reason why you would see people fighting him since his decision to charge a person are critical to people’s liberty.” 

Justice Mohamed Ibrahim, apart from his role at the Supreme Court, will also be under focus as the chair of the Judiciary Election Committee (JEC).

It is expected that there will be several electoral disputes and it will depend on how the judiciary is prepared to handle and dispose of the disputes expeditiously.

Since the judiciary will need resources to undertake its mandate, Chief Registrar of the Judiciary Anne Amadi will have another task of mobilising funds considering previous instances when the Judiciary was almost grounded after its budget was slashed.

With the on-and-off dispute between the Executive and the Judiciary, decisions by President Uhuru Kenyatta will also be keenly watched as to whether he will appoint six judges he rejected and referred their nominations back to the Judicial Service Commission.

Attorney-General Kihara Kariuki has also been blamed for mishandling several cases that the government has lost in the courts, and it will be interesting to see how he will handle more cases expected against the government.