As Kenyans were keenly watching the ongoing interviews of Chief Justice applicants by the Judicial Service Commission, there was much that was going on behind the scenes in deals that saw the seat that was left vacant following the retirement of Justice David Maraga filled.
Powerful ladies behind Koome’s appointment
Weekly Citizen had full leaked information, in an effort to win the support of Kenyan women, Uhuru Kenyatta handlers led by Jubilee strategists Nancy Gitau were pushing for Court of Appeal judge Martha Koome to be the next CJ and the president of Supreme Court. Within Office the President Winnie Guchu, who is chief administrative secretary and previously CAS State Law Office and Department of Justice, is the coordinator. While at State Law Office, Guchu was instrumental in the appointment of Olive Mugenda as a member of JSC. Mugenda is now the chairperson of JSC recruitment process.
Mugenda to be incharge of the process met resistance from some quarters who wanted Deputy Chief Justice Lady Justice Philomena Mwilu to take charge. The matter even landed before the courts.
The commission consists of 11 members but the current one has nine.
It is composed of the Chief Justice, who is the chairperson of the commission, one Supreme Court judge elected by the judges of the Supreme Court, one Court of Appeal judge elected by the judges of the Court of Appeal and one High Court judge and one magistrate, one a woman and one a man, selected by the members of the association of judges and magistrates. Others are the Attorney-General, two advocates, one a woman and one a man, each of whom has at least 15 years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates, one person nominated by the Public Service Commission; and one woman and one man to represent the public, not being lawyers, appointed by the president with the approval of the national assembly.
The commissioners are Lady Justice Philomena Mwilu, Deputy Chief Justice and vice president of the Supreme Court, Justice Mohammed Warsame, Commissioner/Judge Court of Appeal, Mercy Deche, Commissioner/Advocate of the High Court of Kenya and Partrick Gichohi, Public Service Commission representative. Others are Mugenda; public representative, Kihara Kariuki, AG, Felix Kiptarus; public representative, Macharia Njeru for Law Society and Justice David Majanja, commissioner/judge of the High Court. The secretary of the commission is Anne Atieno Amadi – chief registrar of the judiciary.
What is now emerging is that there are three camps among the JSC members with each reading from different scripts. For now, the deep state that has Mugenda incharge had already settled on Koome. Keen observers during Koome interview will agree, unlike other candidates, she was handled with velvet gloves. Those on the panel did not ask why in the four judgments Koome submitted in her application, all were in favour of the state. One such ruling was in favour of Jubilee and was done at night. The controversial ruling helped Jubilee grip to power. The ruling is said to have put Koome on collision course with Supreme Court judges who think if appointed, Koome will take orders from political elite. One man who really pushed for Koome openly is Njeru, the LSK representative on the panel.
” Martha Koome sat at midnight in the court of Appeal (with two other judges) to overturn a high court ruling by Justice Odunga who ruled on a case by Khelef Khalifa on the eve of the repeat October 26 elections of 2017 where Uhuru subsequently won by 98% margin.
The court of appeal allegedly sat but has no records of proceedings. So there is no prove the court actually sat as alleged.
The dead-of-night case participants, Martha Koome included, ignored mandatory procedure of SEEKING PERMISSION FROM THE CHIEF JUSTICE before holding a session outside working hours, including working after midnight on a gazetted national holiday.
Martha Koome and her group even ignored the legal procedure of inviting to court the advocate of the other party.
They were alone in the alleged court sitting.
Additionally, the court of appeal decision of that material night has not been published on the Kenya Law Review website.
Martha Koome did not even list the assets and liabilities of her husband. She said that she forgot.
Last but not least, Martha Koome’s 2020 wealth declaration omitted 3 plots listed in 2019 and when she was asked about it, she said that she forgot.”
When asking Koome questions, Njeru kept on asking her philosophy in judgment time and then. What Njeru failed to understand was, one cannot have dominant philosophy in judgments that are done in unison with other judges.
Political class is worried after Koome landed the plum slot after thorough lobby by the deep state, the future of independent judiciary is doomed.
While being questioned how she would work with the executive that was at loggerheads with the judiciary during Maraga tenure, Koome answered she would make a phone call to the president. Pressed on the same, she said she would use other means to reach State House.
On her relationship with Supreme Court judges if next CJ, Koome aware she does not get on well with majority claimed, she would use a mediator to organise lunch and establish a rapport. Sources say those who pushed for Koome wanted to kill two birds with one stone.
Have a first woman CJ and female lawyers and other women celebrate big. Two, remove Mwilu from her current deputy CJ position by sponsoring a tribunal to investigate her.
The Fight to remove Mwilu has been on for years but courts have been blocking them. Fear also has been, her removal would meet resistance on gender basis.
With Koome as CJ, Mwilu is vulnerable, so it is argued. In the arrangement, those who pushed for Koome to please a certain political class want Court of Appeal judge Justice William Ouko headed to the Supreme Court to replace retired judge Jacktone Ojwang. They both come from Luo Nyanza. By last week, plot was on to have LSK recall Njeru.
Others were planning to move to court to stop the recruitment process on grounds, suspicion has risen in the way wealth declarations were made by applicants. One camp deep state wants to isolate rotates around Justice Mwilu and Justice Warsame. The other consists of Ndeche, who is said to be an independent minded person together with Majanja, who are seen as neural.
However, there are other commissioners seen as sympathisers of the deep state. According to impeccable sources in the judiciary, they are AG Kariuki, Njeru, Gichohi, and Mugenda. It is not known where Kiptarus stands but he is leaning towards Mugenda camp. Justice Mwilu and Justice Warsame have a long history dating several years back and they are said to be the faces behind an attempt to block Mugenda from chairing the current recruitment panel. That vested interests are in the recruitment process is no secret. Forces had tried to protest over legality of some members.
Judiciary chief registrar Amadi who doubles as the secretary to the commission said nothing bars the members from participating in the interviewing process in the search for a Chief Justice.
Murgor had written a letter to the JSC seeking to have Justice Mwilu stopped from sitting in the interview panel. He had claimed that there might be bias and favouritism for some candidates seeking to succeed Maraga. Murgor had claimed that Mwilu’s professional relationship with an advocate who is among the candidates would be a conflict of interest.
A petition by Samuel Gateri to the commission sought to have Mwilu declared the substantive chairperson of the commission, being the acting CJ as stipulated in the judicial service Act to block Mugenda. In his letter Gateri stated: “There may be a ploy by the commission to designate the interim vice chair Prof Mugenda to be the chair in absence of the Chief Justice.”
However, Amadi noted that the interviews would be chaired by Mugenda. “The only thing that can stop a commissioner from participating is probably a court order or a commissioner’s choice not on the panel,” said the registrar. According to the constitution, the process of recruiting the Chief Justice is that the president shall appoint the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the JSC, and subject to the approval of the national assembly.
That each judge of a superior court shall be appointed from among persons who holds a law degree from a recognised university, or are advocates of the High Court of Kenya, or possess an equivalent qualification in a common-law jurisdiction; possess the experience required under clause (3) to (6) as applicable, irrespective of whether that experience was gained in Kenya or in another Commonwealth common-law jurisdiction; and have a high moral character, integrity and impartiality.
The Chief Justice and other judges of the Supreme Court shall be appointed from among persons who have at least 15 years experience as a superior court judge; or at least 15 years’ experience as a distinguished academic, judicial officer, legal practitioner or such experience in other relevant legal field; or held the qualifications specified in paragraphs (a) and (b) for a period amounting, in the aggregate, to 15 years. Each judge of the Court of Appeal shall be appointed from among persons who have at least 10 years’ experience as a superior court judge; or at least 10 years’ experience as a distinguished academic or legal practitioner or such experience in other relevant legal field; or held the qualifications mentioned in paragraphs (a) and (b) for a period amounting, in the aggregate, to 10 years.
Each judge of the High Court shall be appointed from among persons who have at least 10 years’ experience as a superior court judge or professionally qualified magistrate; or at least 10 years’ experience as a distinguished academic or legal practitioner or such experience in other relevant legal field; or held the qualifications specified in paragraphs (a) and (b) for a period amounting, in the aggregate, to 10 years.