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Martha Koome has time to craft vision for the long term

By Leonard Khafafa | May 5th 2021
Justice Martha Koome.

It is almost a fait accompli that Martha Koome will be Kenya’s next Chief Justice. The alacrity with which her name has been forwarded to Parliament suggests that she is in the Executive’s good books. That the august House has been said to be an appendage of the Executive means her vetting is a foregone conclusion.

But to her credit, Justice Koome has not gotten to where she is gratuitously. She has certainly earned her stripes in legal circles where she is described by some as compassionate and with a sense of justice in the right place. She is reputed to be a judge who focuses on substantial justice rather than on technicalities. She is collegial, working well with people around her. To that end, she was the initiator of the Court Users Committee in Kenya, a platform for actors in the justice sector to consider improvements in the operations of courts, among other things.

Should she be appointed CJ, Justice Koome will have one advantage over her predecessors. She will have time on her side. Because of their relatively short tenures, the best that her predecessors could come up with were short-term strategic plans, some of them without enduring qualities. For instance, Willy Mutunga, coming in as CJ with civil society culture, did away with ceremonial robes wigs in the Supreme Court. Former CJ David Maraga reintroduced them.

Maraga, on the other hand, tried to assert the status of the CJ as being equal to that of the president. He appeared to forget that of the three arms of government, the Executive is primus inter pares or first among equals. The resultant spat between the Judiciary and other arms of government has seen it function in extremis; with subventions necessary for its operations curtailed and without the requisite number of judges to ensure smooth running of all courts.

Koome, if appointed, can formulate long-play strategies. She would have the luxury of creating an institutional vision that transcends the short-term whimsical initiatives of her predecessors. Among the things Kenyans expect of her is the healing of the rift between the Executive and the Judiciary. Another is the setting up of the Judiciary Fund as a percentage of the national budget, ensuring that the Judiciary never becomes hostage to Executive caprice.

Learning from her predecessors, there are pitfalls she can avoid to ensure that her long-term goals are met. Foremost is the urge for instant impact, say by measuring her achievements in 100-day plans. For an institution the size of the Judiciary, she will not have met a third of the people in her first 100 days in office. Rather, she should take time to observe the institution and identify with causes that are going well, breathe life into them and perhaps take them to a new level.

For example, court files are now electronic, people are able to litigate without going to court, and courts are able to receive documents, take payments and issue receipts electronically across the whole country. Learning the institution will enable her to tap into these low-hanging fruits.

Perhaps, and arguably so, the only demonstration of a lack of nous is the spat with Law Society of Kenya President Nelson Havi. Some have opined that suing Havi for defamation, allegedly made through his publications against her person, is a threat to free speech and democracy.  Should she make CJ, she will need to focus on bigger things than exasperating gadflies.

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Mr Khafafa is a public policy analyst

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