Why things are working for CJ Koome
By Kwamchetsi Makokha
| September 6th 2021
Over 100 days since Martha Karambu Koome took oath as Kenya’s 15th Chief Justice, there is a manifest thaw in the frosty relations between the Judiciary and the Executive.
Letters have been flying, phones buzzing and officials from the two institutions huddling together to agree on a variety of intractable issues: Chief Justice Koome lists the appointment of 34 judges from the 40 nominated in July 2019; the establishment of a 3,000-strong Judiciary Police Unit, and the development of guidelines for arresting judicial officers in conflict with the law as some of her quick wins.
Katiba Institute, a Nairobi-based non-governmental organisation, has filed a petition that seeks to compel the President to appoint the remaining individuals nominated as judges.
The impasse over operationalising the Judiciary Fund could be resolved when Treasury deposits an initial Sh2 billion at Central Bank this month.
Additionally, the Ministry of Lands has allocated 55 acres of land in Ngong, on the outskirts of Nairobi, for the Judicial Service Academy.
The Nairobi Metropolitan Service has undertaken to build five small claims courts in Fuata Nyayo, Embakasi, Mathare, Dagoretti and Kasarani before the end of the year.
Although the list of achievements is modest, it is sufficient to signal that the Chief Justice enjoys the confidence of the Executive.
Her dalliance with the Executive sharply contrasts with the clamorous relations between the Judiciary and the National Assembly.
Not only has Speaker Justin Muturi repeatedly threatened to slash the institution’s budget if the Chief Justice does not attend parliamentary summons, but Justice Koome felt compelled to write to the Speaker asking that parliamentary committee stop harassing the Chief Registrar with ‘frequent, multiple, overlapping and duplicating’ summonses.
The Justice and Legal Affairs Committee last week summoned Justice Mohammed Warsame of the Court of Appeal, who chairs the human resources committee in the Judicial Service Commission, to explain why two senior positions had not been filled for two years.
Parliamentary Standing Orders do not allow for sitting judges to be summoned.
Additionally, the testy relationship with the leadership of the Law Society of Kenya has not improved.
On July 16, when CJ Koome convened the National Council for the Administration of Justice, which brings together all the actors in the justice sector, LSK President Nelson Havi tweeted: “Madam, … if you cared to read the Judicial Service Act, you would have known that the President of LSK is a member of NCAJ.”
Non-state actors were not represented at the meeting, but Interior Cabinet Secretary Fred Matiang’i was conspicuously in attendance despite not being a member.
A month later, the Chief Justice held a virtual meeting with LSK Branch Chairs Caucus, and subsequently appointed a liaison officer to focus on the society’s matters.
Havi has been one of CJ Koome’s harshest critics right from the interview, when he wrote to oppose her candidacy. She subsequently threatened to sue him for defamation over statements he made after her nomination for the job.
While Chief Justice Koome’s posture may be criticised as a capitulation to the Executive, it buys her space to work on a 10-year vision to transform Kenyan society.
Koome, the country’s first woman Chief Justice, has also launched an aggressive charm offensive to keep public support on her side with a series of interviews, which coincided with the launch of Justice Thursdays, a commitment to dedicate one day every week to public engagements through media, social media, mentorship, court visits and outreach programmes.
After her assumption of office as Chief Justice, the former Court of Appeal judge abandoned her old Twitter handle and launched @CJMarthaKoome, which already has close to 40,000 followers.
Although the handle is way behind her predecessors’ nearly one million followers, it is climbing steadily not far behind those of the Senate and the National Assembly Speakers.
The public is at the heart of the Chief Justice’s vision for the Judiciary in the next decade.
The Social Transformation through Access to Justice vision, which is still being developed, acknowledges her predecessors’ blueprints – the Judiciary Transformation Framework, which laid the foundation for institutional change, and its successor, Sustaining Judiciary Transformation, focusing on enhanced service delivery – notes that judicial reforms were inward-looking with a focus on transforming the institution to deliver on its constitutional mandate.
“I believe that the next decade should mark a shift to judicial reforms being directed outward to facilitate the realisation of a social justice vision without losing sight of the inward-looking reform strategies,” Chief Justice Koome says in her vision statement.
The Chief Justice seeks to expand the channels for addressing grievances by not only increasing the number of courts, tribunals, alternative justice systems and alternative dispute resolution mechanisms.
She has embraced the Small Claims Court, launched a fortnight before she took office, as the special vehicle to enable more people to access justice in a simple, cost-effective, and expeditious way.
So far, 780 of the 1,200 cases filed in Small Claims Court have been resolved.
Her partiality to the Small Claims Court is informed by the reality that many people, especially vulnerable people who most need judicial protection lack the money to take part in lengthy and costly court proceedings.
In an effort to give citizens and vulnerable groups a forum to pursue an egalitarian social order through their legal claims, the judiciary will distribute education materials on judicial decisions, services and procedures.
She aims to reduce the distance to court to an average of 100km by establishing a Magistrates Court in each constituency, and a High Court in each county.
The Chief Justice’s ambition is to make every court and tribunal a centre of excellence in delivering justice, a critical benchmark of which is the undertaking that no case should be tried for more than three years, and no appeal last longer than 12 months.
The Chief Justice proposes that hearings start on time, and judicial officers control the course of proceedings.
Judges and magistrates will be required to use pre-trial conferences to narrow down the issues to be addressed in a case, reduce adjournments, and extend a day’s hearing beyond the normal working hours to complete the day’s business.
They will be required to enforce a strict no-adjournment policy and punctuality at court sittings.
Complaints of delayed justice have increased despite establishing more avenues of adjudication.
CJ Koome’s blueprint proposes provide public information on cases, the institution’s activities and its functions as part of judicial accountability.
“I will seek to engage actors within the justice sector, and members of the public, in a dialogue to identify and address the real barriers to access to justice,” Chief Justice Koome says in the Social Transformation Through Access to Justice draft blueprint.
An information dashboard containing statistics on caseload trends and the status of courts across the country will be used to make quick, deliberate, and accurate decisions to support efficient management.
Virtual court services, e-filing, and computerised case management as well as collaboration with other agencies, and will seek to enhance transparency and information sharing.
She proposes to increase staff and improve mechanisms for handling complaints in the Judicial Service Commission so that they are resolved quickly.
The Judiciary Ombudsperson will be required to receive and document feedback from consumers of judicial services for improvement.
The principles of leadership and integrity will be part and parcel of the administration of justice.
Within the institution, the Chief Justice hopes to entrench a culture of integrity in all decision-making process, including promotions and appointment to leadership roles.
Disgruntled staff in the magistracy had complained that many of them had not had progressed in their careers for more than 10 years.
Chief Justice Koome proposes to institutionalise a performance-based reward system for high performers as well as peer review to build a culture of excellence and commitment to access to justice.
Continuous training and learning will be geared towards responding to the grievances citizens and vulnerable groups have voiced in order to improve the sensitivity, skills and capacity of judges and judicial officers to the social transformation agenda in the Constitution.
A world-class Judicial Service Academy will train judges, magistrates and judicial staff to appreciate that their decisions have impact beyond the legal arena by developing indigenous social justice jurisprudence.
She reckons that the Judiciary must develop and be guided by the Jurisprudence of Social Justice as envisaged by the Constitution.
“Kenyans intended to create a caring, humane, egalitarian, and just state and society. This emancipatory promise … resonates with the communitarian ethos of Kenyan communities in which the ethic of ‘utu’ is venerated and informs all decisions by individuals and the community.”
In order to fund this enterprise, the Chief Justice pledges to ramp up discussions with the Executive and Legislative to ensure the Judiciary receives up to 2 per cent of the national budgetary allocation to give judges and judicial officers the tools they need for their work.
She proposes to seek land for Judiciary infrastructure with county governments and the National Government Constituency Development Fund Committees, and to roll out small claims courts throughout the country.
So far, the Sh12 billion World Bank-funded Judicial Performance Improvement Project, which was due to close in July, was extended to October when all construction work will be completed, but there are talks on a possible second phase.
The CJ has also held meetings with donor agencies in an effort to reinforce the institution’s financial ability to implement its interventions and programmes.
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