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Supreme Court must now embrace diversity

By Kamotho Waiganjo | April 30th 2021
Lady Justice Martha Koome when she was interviewed for the position of the Chief Justice at the Supreme court buildings on April 14,2021. [Collins Kweyu,Standard]

This week’s nomination of Lady Justice Martha Koome as Chief Justice was a bright spot in our otherwise dreary existence in these times of Corona. Her story; the little shoeless girl from a polygamous home in some dusty village, told during her interview in an unapologetic Baite accent, was a tear-jerker.

Using current lingua, this is the genuine hustler, a “rags to gown” story that will be an inspiration to many youngsters struggling in forgotten villages.

Enough has been said and written on the good Judge so I want to focus away from her to the next phase of appointments;  the vacant Supreme Court seat. As the court moves into the interview for the Judge of the Court, there are some issues that Prof Olive Mugenda’s team should not lose focus on. This is the issue of regional, skills and background diversity.

When one looks at the Supreme Court as a whole, there are legitimate concerns about these diversities. When the court was first constituted in 2011, it was diverse in many respects especially skills and regional diversity.

It, unfortunately, failed on the gender front where it was non-compliant yet it was being called upon to adjudicate gender non-compliance issues ad infinitum!  

Fortunately, Lady Justice Koome’s appointment cures that defect. On regional diversity, res ipsa loquitar, the thing, then and now, speaks for itself, as lawyers like to say with pomposity. On skills and background, the court was diverse; it comprised Justice Nancy Baraza, the Deputy Chief Justice, who had come from private practice, two judges, Dr Willy Mutunga and Prof Smokin Wanjala from academia, Justice Njoki Ndung’u from the political/activism wing and three judges, Justices Phillip Tunoi, Mohammed Ibrahim and Prof J B Ojwang from the Bench. The latter, Justice Ojwang, had come from academia.

Since then, the “demographics” of the court have shifted. We have lost the only member, who emanated from the Bar. Two of the scholars, Justices Mutunga and Ojwang have since retired.

As the court fills the remaining seat, it must undoubtedly enhance regional diversity. It must, however, not ignore the otherwise overlooked skills and background diversity at this critical level.

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As the apex court determining Kenya’s jurisprudence with finality, nothing matters more than technical competence of the judges; their capacity to consider the multiple aspects of complex issues of law brought before them for final determination.

However, this competence does not occur in a vacuum. It is shaped by a judge’s background, experiences and exposure which define not just their worldview but their judicial philosophy.

With Lady Justice Koome coming from the Bench, it will mean that four of the seven judges will have emanated from the Bench. If the vacant position is filled by yet another judge, that will make five judges who have spent the last few decades on the Bench, which produces a particular world view. That does not augur well for the court.

The JSC needs to replace the missing constituencies, the bar and academia. Of course the nominating commission can only work with the hand it was dealt; the persons who are qualified and applied for this position.

Looking at the remaining interviewees, though most are eminently qualified, I see a challenge. I would, however, propose that if the commission is not able to obtain the right person who satisfies this aspect of skills and background diversity and yet does not compromise key diversities especially regional balance, it can re-advertise the position for non-responsiveness.

Failing this, the court will gradually grow into an inbred court that sees life solely from the perspective of the bench. That could compromise the vibrancy of the court’s jurisprudence in its infant years to the prejudice of Kenyans.

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