All eyes on CJ Martha Koome as Uhuru jolts Judiciary

Chief Justice Martha Koome after receiving instruments of power from Deputy Chief Justice Philomena Mwilu during her assumption of office ceremony held at CJ's Gardens, Supreme Court. May 24, 2021. [Jonah Onyango, Standard]

Pressure is mounting on Chief Justice Martha Koome to respond to Thursday's appointment of 34 judges and rejection of six by President Uhuru Kenyatta.

Kenyans are also keenly watching the escalating tiff between the Head of State and the Judiciary even as it remains to be seen whether the CJ will pass her first test by standing her ground fighting for the independence of the Judiciary or play puppet to the Executive.

In a special issue of the Kenya Gazette published Thursday, the president appointed 34 of 40 candidates nominated by the Judicial Service Commission (JSC) to the Court of Appeal, Environment and Lands Court, and the Employment and Labour Relations Court.

A statement from State House said the president turned down the nominations of High Court Justices Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir to the Appellate court “for failing to meet required threshold”.

Registrar of the High Court Judith Omange and Chief Magistrate Evans Makori, who had been nominated to the Environment and Lands Court, also did not make it.

But in doing so, the president attracted the ire of those in the legal fraternity who accused him of “cherry picking” who to appoint and who not to.

This more so premised on the fact that former CJ David Maraga had declined four times attempts by the president to appoint a section and leave out others. Maraga had maintained that it was either all be appointed or be declined.

All eyes are now on CJ Koome –  who pledged to bridge the rift between the Executive and Judiciary through negotiations - to see what action she takes against the move by the president.

Former Mukurwe-ini MP Kabando wa Kabando called on the CJ, who has barely settled in office, to reject the swearing in of the gazetted judges until all those nominated are gazetted.

“President Uhuru has predictably trashed the courts. CJ Martha Koome should protect the court by refusing to swear any until all 40 are gazetted. The 34 judges should decline being sworn until all 40 are gazetted. Real test on Chief Justice Martha Koome starts today. Trailblazer or puppet?” posed Kabando.

Law Society of Kenya (LSK) president Nelson Havi also weighed in on the matter saying: “For Chief Justice Emeritus David Maraga it was all 40 judges or none, a stand supported throughout by LSK. Chief Justice Martha Koome has weakened the Judiciary by conceding to the rejection by Uhuru Kenyatta of four judges and two magistrates. No congratulations from me.”

Elgeyo Marakwet Senator Kipchumba Murkomen said: "Our eyes are fixed on the liberation warrior, the Prayer warrior, the Chief Justice and the President of the Supreme Court Justice Martha Koome. This a watershed moment in the history of our Judiciary and will define the legacy of CJ Koome. Over to you madam CJ!”

Nakuru Senator Susan Kihika stated, “For CJ Martha Koome and Judicial Service Commission, the rubber has met the road, all eyes on you!.”

Deputy Chief Justice Philomena Mwilu (left) after handing over instruments of power to new CJ Martha Koome during the assumption of office ceremony held at CJ's Gardens, Supreme Court. May 24, 2021. [Jonah Onyango]

US-based scholar Prof Makau Mutua said the CJ must take a stand. “CJ Martha Koome must speak up now. It’s now, or never. BBI judges Joel Ngugi and George Odunga have been denied elevation to the Court of Appeal. Mr Kenyatta can’t choose which provisions of the constitution to obey, or disregard.”

Makueni Senator Mutula Kilonzo Jnr said, “The refusal to promote judges to the Court of Appeal amounts to a veto on the powers of JSC. They cannot act on the memo on the suitability of the said judges or rescind their decision.”

Political analyst Javas Bigambo said should CJ Koome choose the glittering path of complacency, she will find herself ejected from the office “before the cock crows three times and if that happens, she will have elevated retired Chief Justice Maraga to a Saint.”

Nominated Senator Millicent Omanga said, “Dear CJ Martha Koome, Kenyans are keenly watching your moves over the appointment of judges. Will you call the president's bluff or you'll pander to the executive? Whatever you do with this moment will define Kenyans' perception of the Judiciary under your leadership. Act!”

The appointment of the 34 judges has now put CJ Koome at crossroads on her next move. The president's onslaught on the Judiciary during the Madaraka Day fete further extenuated an already sour relationship between the two arms of government.

During her vetting in Parliament, Koome said she would bank on dialogue and negotiations to mend the cracks between the Judiciary and the Executive. “No one can take away the independence of the Judiciary. That is written in the Constitution,” she said.

She also said the Judiciary would not take any directions from other authorities.

In a late statement to newsrooms on Friday, Koome urged the President to appoint the six of the 40 judges he rejected, saying the Judiciary is in dire need due to an increase in the backlog of cases.

She cited a scenario in 2014 when the Judicial Service Commission (JSC) recommended the appointment of 25 judges, but only 11 were appointed and would later appoint the other fourteen.

“I wish to state that I had no part to play in this Constitutional process which was undertaken almost two years ago. Upon forwarding the names to the President, the Chief Justice and the JSC became functus officio (ceased to have any role),” she stated.

The CJ broke her silence a day after Uhuru gazetted the appointment of 34 judges, and presided over their swearing-in, all within 24 hours.

She also lamented on respect as regards matters Judiciary saying no one should direct the JSC on how to execute its mandate.

“Respect for the rule of law and independence of the Judiciary is guaranteed under the Constitution. No person or authority is allowed to direct the JSC or the Judiciary in the execution of its mandate,” CJ Koome said.

She termed the happenings between the Judiciary and the Executive as a “delay and misunderstanding” referring to the impasse in the appointment of the judges, spanning for two years.

But constitutional expert Bobby Mkangi says the collision between the Executive and Judiciary was here to stay drawing from instances dating back to former CJ Willy Mutunga's tenure.

He says the collision is however by design because the Constitution does not state that these two institutions should work in chorus and that Kenyans should expect occasional "head-butting" between the two.

"We have a check and balance system and it is expected that within the confines of the powers given to each arm of state, there is going to be collision once in a while. Even prior to the nullification of the presidential results, the relation between the Executive and the Judiciary was not always cordial," said Mkangi.

On how the relationship between President Kenyatta and CJ Koome will pan out, Mkangi said it should be guided by the law albeit emphasising that the CJ should first protect the Constitution, sovereignty of Kenyans and independence of the Judiciary.

The lawyer also urged Kenyatta to exercise restraint on judicial matters. "In as much as the president has a right to comment on statehood and state craft, holding his office demands a more cautioned and strategic approach to issues. Besides heading government, the president is required to show majesty and restraint," he said.