Koome’s nomination raises several constitutional issues

Last Tuesday’s decision by the Judicial Service Commission to recommend Court of Appeal judge Martha Koome as Chief Justice came as a pleasant surprise to me in two respects. 

First, this nomination is largely possible because the Constitution vests in the JSC the power to recommend a nominee for appointment as Chief Justice in a departure from the practice in presidential systems such as the US in which a president nominates and appoints after parliamentary approval.

In a sense therefore, Justice Koome’s nomination is a significant victory for Kenya’s 2010 Constitution, which radically changed the method of appointing judicial officers.

Secondly, the overwhelming opinion of the educated society was that the face of Kenya mantra in the composition of top state organs would be the main consideration by the JSC.

It was therefore pleasantly surprising that the JSC had the courage to make a recommendation whose effect would be to aggravate and compound the perception that a majority of senior state positions are held by people from the Mount Kenya region.

Various competencies

Invariably, on account of this face of Kenya mantra, it is likely that the parliamentary process for approval of the nominee might be a little bumpy. Additionally, the failure by the JSC to issue a comprehensive statement on why after its reported long deliberations and evaluation it settled on Justice Koome might attract unwarranted speculations, unhelpful to the commission’s choice. 

Kenyans deserved an explanation of the factors that informed the decision of the JSC and why Justice Koome is best suited to lead the judiciary during the coming political transition that – by the look of the BBI process and other things – will be prone to considerable constitutional contestations over the next three years.

The foregoing notwithstanding, my considered view is that Justice Koome’s nomination is inspiring, well-merited and she has the capacity to excel as the third CJ under the 2010 Constitution, if Parliament approves her nomination.

From the onset it should help to remember that Justice Koome was picked by the JSC from eight candidates who brought to the table various competencies, experiences and personal attributes.

Interestingly, no judge of the Supreme Court and only one High Court judge applied for the position and from the Court of Appeal, the only applicants were Justice William Ouko and Justice Koome. Amongst Kenya’s top-tier senior advocates only Mr Fred Ngatia applied.

Without a doubt, Justice Nduma Nderi of the Employment and Labour Relations Court gave a good account of himself but in a profession beholden to seniority, it would have taken a miracle for the JSC to pick him. The point here is that the recruitment of Justice David Maraga’s successor was a three-horse race between Justice Ouko, Mr Ngatia and Justice Koome.

Speak for justice

In the wake of the JSC’s recommendation, Mr Ngatia has protested that he was unfairly denied the job. Whether or not Mr Ngatia’s complaints are credible, it should help if the JSC could try and explain its decision because in any event that is the least the Constitution requires of it. 

Turning to the face of Kenya mantra, I must confess this was the main reason given by many lawyers inclined to believe that Justice Ouko would win the three-horse race besides his long experience in judicial administration and as appellate judge.

Did the JSC err in apparently ignoring the ethnic and regional diversity considerations in nominating Justice Koome? There is no easy and obvious answer to this question. At moments like this, it helps to pause for a moment and reflect upon the person that Providence has conferred the privilege to serve in high office.

Speaking for myself, among the eight candidates Mrs Koome was the only lawyer whose name I heard of as a young man in the 1989 – 1991 period. During the days when great courage was required to speak for justice and question the malfeasance of the power elite, Mrs Koome was heard loud and clear.

In Justice Koome, we have a decorated warrior for justice and accomplished activist for freedom and democracy. In my mind among the eight candidates none deserved the opportunity to oversee the next phase of implementing the 2010 Constitution more than Justice Koome.

Mr Mungai is a constitutional lawyer. [email protected]