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What next for CJ nominee Lady Justice Martha Koome?

By Paul Ogemba | April 28th 2021
Judge Martha Koome at the Supreme court building on Wednesday, April 14, 2021, when she was interviewed for the post of Chief Justice. [Collins Kweyu, Standard]

Lady Justice Martha Koome’s journey to becoming the first female Chief Justice has begun in earnest after President Uhuru Kenyatta submitted her name to Parliament for vetting.

After navigating through the rigorous interviews by the Judicial Service Commission, the CJ-designate has another hurdle, Parliament, which could break or make her dream as a woman of many firsts.

Constitutional lawyer Kibe Mungai said it is only halfway for Justice Koome in her journey to the top of the judiciary given Parliament is likely to consider other factors not taken into consideration by the JSC during her interview.

“The vetting in Parliament will be more of a political decision although they will still have to consider her qualifications and experience. They will also test the broad acceptance of the new CJ before the final decision to approve or reject her nomination,” said Mungai.

According to the Constitution and the Judicial Service Act, the President is obligated to forward the name of the nominee to the National Assembly as soon as he receives recommendations from JSC.

National Assembly Speaker Justin Muturi, while introducing the President’s message to the House, said he had received the Certificate of Presidential Nomination, Judge Koome’s Curriculum Vitae, testimonial and the JSC recommendation.

Muturi said the submissions were done in accordance with Article 166 (1) of the Constitution which provides that the President shall appoint the CJ in accordance with the recommendation of the JSC and subject to the approval of the National Assembly.

“The President therefore seeks the approval of the National Assembly on the said nomination and in line with Section 5 of the Public Appointments (Parliamentary Approval) Act, 2011, the relevant House Committee is duly notified to commence the process,” said Muturi.

Under the law, the relevant committee, in this case the National Assembly’s Departmental Committee on Justice and Legal Affairs, will have 28 days to vet Justice Koome and present their recommendation for debate by the whole House.

Parliament’s Standing Orders provide that the committee should notify Justice Koome and the public of the time and place of holding the approvals session which should happen within the given 28 days before they table the report on or before May 25.

“Although the committee has 28 days to consider and make a decision on the nomination of Justice Koome, they should consider it on a priority basis in view of the compelling public interest and the unique place of the office of the Chief Justice,” said Muturi.

Just as at it was before the JSC interviewing panel, the CJ nominee will again encounter memorandum from the public about her suitability for the job as the law demands that the legal affairs committee must involve public participation.

Lawyer Sam Muga argued that it will be a tough and anxious moment for Justice Koome since the committee and Parliament can still reject her nomination and lock her out from becoming the CJ.

“In the event Parliament rejects her nomination, she will be locked out because the JSC cannot reconsider her candidature. They will start the process afresh, through advertising for the vacancy, and select another candidate,” said Muga.

However if Parliament approves her nomination, Mr Mungai said, the President will appoint, gazette and swear-in the judge as the next CJ.

The lawyers agreed we are not likely to see a situation where the President refuses to appoint her as happened in the case of 41 judges who were nominated by the JSC on account that the constitution is specific on the President’s role in the appointment process.

“Once Parliament approves her nomination, then the President cannot reject it. The Constitution is clear that the President’s role is to appoint subject to Parliament’s approval. His will be a ceremonial duty to appoint, gazette and swear-in,” said Muga.

Next steps in CJ appointment

1. President forwards the name of Justice Koome to Parliament for vetting.

2. Speaker notifies the House and forwards the recommendation to Justice and Legal Affairs Committee.

3. The committee has 28 days to vet the judge through a public participation process.

4. The committee submits to the whole House its report which either approves or rejects the nominee.

5. Members of Parliament debate to either adopt the committee’s report or reject it.

6. If Parliament approves nomination, name is forwarded back to the President for appointment.

7. If they reject it, the report is forwarded to JSC to start fresh recruitment.

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