Chief Justice Martha Koome has made history as the first female occupant of that office in Kenya.
While this is something to celebrate, it is also an indictment on our society that it took over 50 years since Independence before this could happen.
This, even though women are slightly more than men in Kenya according to the population census of 2019.
Chief Justice Martha Koome has made history as the first female occupant of that office in Kenya. While this is something to celebrate, it is also an indictment on our society that it took over 50 years since Independence before this could happen.
This, even though women are slightly more than men in Kenya according to the population census of 2019.
Her assumption of office as CJ was even more remarkable taken in the context that it marked steady progress in gender equality and women leadership within the institution. Her deputy and the Judiciary Chief Registrar are also female. In addition, the numbers of female judges within the Judiciary are also remarkable.
In the past, the Supreme Court has been criticised for issuing an advisory on the question of the two-thirds gender principle when itself it did not meet the threshold. This is now a moot point since there are three women against four men as members of that court.
The 2010 Constitution continues to lead to fundamental changes in the Kenyan society. The Judiciary has been a front-runner in this transformation. The first Chief Justice following the adoption of the Constitution, Willy Mutunga, kick-started the process.
Under the aegis of the Judiciary Transformation Process, addressing the fundamental systemic challenges bedeviling the institution were not only identified, but mechanisms for resolving them were put in place and implemented.
Several achievements were made, including changing the face of the Judiciary to make it more citizen-responsive, expansion of the infrastructure and increasing the number of judges and judicial staff.
Judge Koome’s predecessor, retired Chief Justice David Maraga, focused on deepening access to justice, digitising the Judiciary and clearing case backlog among other measures. These were undertaken under his blueprint of sustaining Judiciary Transformation.
Although progress has been made, the new Chief Justice is taking office at a time the institution is facing several challenges. She will have to give priority to several of these and chart her own path.
Top among these is the place of the Judiciary within the governance framework of the country. The independence of the Judiciary is settled under the Constitution. In practice though there is a serious threat and contestation over judicial independence. The relationship between the Judiciary and other arms of Government, while normally tense due to normal checks and balances, is currently unhealthy.
The continued stalemate over the appointment of 41, now 40 judges after one died, is symptomatic of this challenge. The functioning of our democracy requires that this stalemate be resolved. While there are arguments on both sides of the divide, the non-resolution hampers effective administration of justice and hinders smooth working relationship between the arms of Government.
In practice, interdependence is necessary for the country to run. This does not mean and should never be interpreted to mean encroaching on the turf of another arm or trying to dictate to it.
It means though that all arms of Government operate in a comity that recognised their mutual supporting roles for the benefit of Kenya.
The National Council on the Administration of Justice (NCAJ) was created to co-ordinate actors and actions in the justice sector. It is a powerful body whose impact has not been fully felt over the past few years. It provides space for candid discussions and resolution of critical challenges in the justice sector.
The Chief Justice promised to ensure that the Judiciary does not become the graveyard of such cases.
In the past, a lot of blame game has existed among agencies involved in the fight against corruption. It is time that more efforts were put in sealing these loopholes and ensuring inter-agency collaboration in the administration of justice. Chief Justice Koome must make strengthening the NCAJ one of her top priorities.
Every Chief Justice determines what one’s footprint on the institution is going to be and works on it. Many leaders though leave the issue of legacy until it is too late to make a difference.
The new CJ has been passionate about children justice. Whatever else she does, the children of this country must enjoy the benefits of her years of advocating for their rights and better treatment by the justice system.
Just last week, the Federal Court of Australia sitting in Melbourne gave a decision on matters of climate change. In the case which involved coal extraction, the court held that the government owe children a duty of care in making a decision on coal extraction.
Although the court did not grant an injunction restraining the minister, the recognition of this duty is fundamental. Borrowing from this decision, it is important that Kenyan courts mainstream children’s rights in all facets of its operations and not just in the Children’s Court.
Unlike her predecessors, the CJ will have a decade to oversee her agenda. She should start early. It is important that the Chief Justice pick out key issues she wants to be remembered for and start working on them from the first month in office.
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