The nail-biting search for Kenya's next Chief Justice seems to be at an end. Martha Koome will be the 22nd head of the Kenyan judiciary. National conversations during the recruitment process offer both her, the Judiciary, and the public a possible legacy she could leave behind.
The battle to control the judiciary and restrict access to justice and legal equality has been with us for nearly a century. The judiciary went from being an instrument of the colonial governor to a tool of post-colonial presidents. The 21 previous Chief Justices were monotonously male and over half were non-Kenyan. A quick skim of their resumes reveals British colonial administrators, military officers, and members of the British establishment. These were judicial activists of a different type.
Remarkably, the first African Chief Justice 39-year-old Kitili Mwendwa got his position not from an earnest attempt to Africanise the judiciary, but because acting Chief Justice Arthur Denis Farrel rubbed President Jomo Kenyatta the wrong way. His crime was reducing the one-year jail term handed over to nationalist oppositionist Bildad Kaggia to six months. Eight Chief Justices were appointed and fired at the pleasure of the Moi KANU administration in under 21 years.
Before the 2010 constitution, chief justices were appointed without public interviews. There was no Judicial Service Commission, parliamentary approval, or security of tenure. Poetically, the first person to serve as Chief Justice under the new constitution was someone that had faced the worst of the system. Son of a tailor, radical law lecturer, activist university leader and former prisoner of conscience, Dr Willy Mutunga is widely acknowledged as expanding access to justice and leaving an independent and efficient judiciary. His successor David Maraga made international history by courageously nullifying the re-election of an incumbent in the 2017 General Elections.
This historical context is significant. So too are the recurrent themes of corruption, death penalty, sexual offences, judicial activism and independence from the Executive that ran through the interviews. The fact that Martha Koome is Kenya’s first woman Chief Justice is also highly significant. The world has only experienced less 100 women chief justices.
As the first Lady Chief Justice, there may be expectations she will accelerate women and children’s rights only. Given high gender inequities and violence, this would be welcome. She must also tackle the views of millions that not all of us are equal under the law. Not just women and children, but victims of forced evictions, medical neglect, police brutality, the poor, youth, ethnic minorities and persons with disabilities among others. She must nurture a listening for all who today feel they have no access to justice. To do that, she will need to spend time in both the courts and the communities they serve.
While speaking at a Dandora law clinic recently, a Magistrate was stunned to hear youth state this was the first time they had met a Judicial Officer out of the dock. Her ladyship must not forget her humble roots and personally bring the law to the people. To those that unsuccessfully vied, thank you for seeking to serve us. Thank you also for saving us the spectacle of arguing for the appointment of runners up as Deputy Chief Justices to ensure ethnic balance. The political class could learn a thing or two from you.
This opinion was first published in the Sunday Standard on 2 May 2021