• Judge Koome said she believes that one is not entitled to property at the point of entry into marriage.
• Justice Koome said she subscribes to feminist legal theories which say that the law corresponds with structures of patriarchal dominance and oppression.
Image: CHARLENE MALWA
Lady Justice Martha Koome has expressed her concerns on the country laws in relation to gender which she says have been socialised to look at women as second class citizens who are not supposed to take part in leadership positions.
Justice Koome said she subscribes to feminist legal theories which say that the law corresponds with structures of patriarchal dominance and oppression.
"I subscribe to that 100 per cent. The legal structure is dominated by patriarchy because our society is patriarchal. Laws are made in parliament and the dominant majority in parliament is male so it's informed by their background and socialization," Koome said.
Justice Koome spoke on Wednesday as she faced the JSC panel on its third day of interviews.
She is among 10 candidates shortlisted for the position of Chief Justice.
“We have come a long way especially with the Constitution that outlaws discrimination. The old Constitution out rightly discriminated against women as it did not allow citizenship and allowed customary law,” she said.
She held the view that the Constitution has now been remedied through provisions of gender equity.
She gave an example of a case where a woman won a discrimination suit against a hotel that turned her away for not being accompanied by a man.
On the issue of matrimonial property, Judge Koome believes that one is not entitled to property at the point of entry into marriage.
However, she says that if the spouse contributed to the development of existing property then he or she acquires occupational rights.
On the issue of mandatory death sentence, Judge Koome said doing away with mandatory aspects of it helped justice.
She said sentencing is a judicial authority however death penalty is still a provision of the law.
"But the death penalty as the only penalty is unconstitutional because it takes away judicial authority," she said.
She noted that not all murders are the same and therefore the sentencing ought not to be the same.
The judge was also grilled over the famous Muruatetu case which dealt with certain aspects of the death sentence.
In that precedent, the court held that the mandatory death sentence ought not to be imposed on every case.
The Death sentence concept promotes Hammurabi's code. Hammurabi is retaliatory justice 'an eye for an eye.'
However, she says the decision on the death penalty opened a Pandora's Box and she will follow up with the Attorney-General to find out if the sentencing report has been prepared to ensure the sentencing policy takes into account the decision of the Supreme Court.
"There is a need for a coherent sentencing approach to sentencing," she said.
Judge Koome revealed that the Court of Appeal has been reducing the sentences for convicts of defilement cases who are 19 to 20 years.
“We need to nurture our youth, cases where there was no violence for example a case of Romeo and Juliet I have seen the Court of Appeal reduce the sentence to five years which is more like a slap on the wrist,” she said.
The judge says this will depend on the circumstances of the particular cases that were before the court.
On the issue of the impasses of the appointment of 41 judges, she told the commission that she will endeavour to negotiate with the Executive.
"We must discuss the issue of the 41 judges with the President and we find out where the problem is resolved and have the judges sworn-in.
On BBI, Judge Koome said she would not comment on the ruling by the Supreme Court that the cases filed at the High Court should be determined first.
"Those are sensitive matters I can't discuss them since it will be prejudice. I will read the files, call the judges of the Supreme Court. Whether the Supreme Court takes over the cases will be a discussion arrived at a consultative forum," she said.