Judges arrest interferes with Judiciary independence — CJ Koome

Chief Justice wants complaints against judges and magistrates lodged with the Judicial Service Commission

In Summary

• The CJ denied that there was bad blood between the Judiciary and the Executive, saying the public attacks against judges were just statements of disgruntled litigants.

Chief Justice Martha Koome during an interview with journalists at her office on Thursday, September 2, 2021
Chief Justice Martha Koome during an interview with journalists at her office on Thursday, September 2, 2021

Arresting judges inside their chambers on matters arising out of how they handled cases amounts to interference with the independence of the Judiciary, Chief Justice Martha Koome has said.

Koome said judges and magistrates are not above the law but quickly noted that the officers pose no flight risk, thus dragging them out of their chambers is perceived as interference that ought to be guarded against.

Last month, detectives arrested and later released judges Said Chitembwe and Aggrey Muchelule on allegations of corruption. 

 “That raised a lot of concern especially the manner in which they were arrested from their chambers. It caused a lot of fear in the Judiciary and members of public were concerned and it is a legitimate concern,” Koome said.

"So what we are saying is if a judge in infraction of the law what do you do? Do you come to the chambers like I was sitting there perhaps finishing a ruling and go deliver it in court and arrest me, will it not look like you are interfering with the independence of the Judiciary?

"That perhaps that ruling I was going to deliver was against somebody powerful and therefore the only way to stop me from delivering the ruling is to arrest me so that is something we have to guard against.”

The CJ was speaking during an interview with reporters on Thursday. She said the manner in which the judges were arrested raised a lot of fear in the Judiciary. 

Koome said when a judge or a magistrate is in an infraction of the law, he or she ought to be treated in a way that doesn’t erode the respect of the constitutional offices they hold.

“What I want to say clearly not to be misunderstood is that judges and magistrates and indeed everybody working in the Judiciary including myself, we are not above the law. We are governed by the law, we should respect the law, we should respect our oath of office and code of conduct,” she said.

A judge, she said, occupies a very unique position because the Constitution has vested the power of protecting the rule of law and democracy on the Judiciary. That function is guarded by a judge.

Koome said the right channel to use when dealing with complaints against judges and magistrates is to approach the Judicial Service Commission and table the complaints so that the commission can look at them and make recommendations.

The CJ said she had held meetings with Interior Cabinet Secretary Fred Matiangi and Inspector General of Police Hillary Mutyambai to come up with protocols on how to handle such a situation in the future.

She said the Judiciary is an arm of government that must be protected and treated with dignity because it is the one that upholds the rule of law, protects and promotes the Constitution.

"Even when the other arms of government don’t agree with decisions from courts, they must be able to steer clear from that and look at the bigger picture of the need of a strong independent Judiciary as an institution," she said.

The CJ however denied that there was bad blood between the Judiciary and the Executive saying the public attacks against judges were just statements of disgruntled litigants.

“For a government to succeed, you cannot isolate one arm of government, we must move together. If there is tension and disagreement we must be able to address that. Sometimes the Executive may speak as disgruntled litigants and say I don’t agree with this judgment. That is human.

"Even if I was a litigant and I lost in court, I can say something like the judge has been corrupt or the judge did not consider my evidence. Every Parliament, every Kenyan would like a strong judiciary which is independent, accountable, incorruptible and efficient,” she said.

Koome said, “The government is like a three-legged stool and when one is removed it falls.”

She decried wrangles at the Law Society of Kenya saying she had held talks with lawyers including senior counsels who assured her that they will mediate and resolve the issues at the society.

The Society in her view is a very important stakeholder in the administration of justice and played a key role during the single-party rule.

When asked what strategy she will use to combat both real and perceived corruption in the Judiciary, the CJ said that she was working hand in hand with stakeholders in the National Council on Administration of Justice to effectively prosecute all corruption-related matters and resolve them.

She noted that if all in the administration of justice played their role well, cases of corruption will be tackled once and for all.

“I have had meetings with judicial officers serving in the Anti-Corruption Court. I have held meetings with NCAJ bringing all the actors together because you recognise that if we are so good in the Judiciary alone we can never fight corruption.”

“We all have taken an oath of office never to compromise justice never deal with anything other than evidence that is before us and never to tweak that evidence to favour anybody or even to be influenced by anybody. So if anybody in the Judiciary is practicing corruption, they know they are breaching their oath of office. It is illegal and they are committing an offence and they are living on borrowed time.”

Corruption, she said, is a challenge not only for the Judiciary but for Kenyans generally and collectively.

“For us in the Judiciary, the leadership, the Executive and Parliament for all of us to come up and say we do not want corruption and we will not entertain corruption. We will use every means to ensure that the systems that we work with do not allow corruption to taint the justice that we deliver within the Judiciary.”

Koome said she wants to be remembered as the CJ who saw Kenyans empowered to know their rights, one who connected Judiciary with the people; built the Supreme Court headquarters and one who reduced conflict in society.

She promised to work in accordance with the law and with whatever regime that comes to power.

"As Chief Justice, I give my best according to the law. If another regime comes, I will deal with them according to law." 

She defended herself against criticism of feminism where she has been accused of appointing many women in leadership roles within the Judiciary. Koome said that for ages, men have held those roles and no one complained. "Those women earned the positions rightfully."

The CJ also highlighted her achievements and challenges during her first 100 days in office.

Below are the questions and her answers

Q) Now that you are 100 days old in office, give us the good and the not-so-good experiences you have had so far?

A) I have something to share with the public in the last 100 days in terms of things we improved collectively.

I can’t say I did it alone, it is through the support of Kenyans and God because I am a woman of faith. And as I expected, the biggest challenge that confronted me was a serious shortage of judges.

In the Court of Appeal that Justice William Ouko and I had left to join the Supreme Court, there were only 11 judges. Of these, three were handling other constitutional roles e.g. JSC representative and the Director JTI, therefore, reducing the number of Court of Appeal judges to below the constitutional threshold.

I was very concerned about the delivery of service by the Judiciary and the inconveniences and frustrations visited on the litigants, not to mention the costs of visiting courts and fees paid to advocates.

I wrote a letter to His Excellency, the President, and requested an appointment and listed three things for discussion on the broad subject on the administration of justice, which can be broken into first, the appointment of Judges, the second was budgetary allocation and operationalisation of the Judiciary Fund, which is provided for in the Constitution.

I was pleasantly surprised when on the evening of June 4, a Gazette notice was issued announcing the appointment of 34 judges, seven to the Court of Appeal, and 18 to the Environment and Land Division of the High Court and eight others to the ELRC.

I was grateful for this, but it was bittersweet because six other judges who were nominated by the JSC were not appointed. I thanked His Excellency for this appointment and pleaded with him to similarly appoint the remaining six judges.

The Small Claims Courts were launched two weeks before I took office. These courts are transformative for the justice sector as they focus the attention of the Judiciary on the most immediate pressing needs of citizens.

We all appreciate that most disputes are about everyday and ordinary claims that are of small monetary value. The small claims courts are, therefore, intended to expeditiously deal with these disputes as its monetary jurisdiction is only Sh1 million.

In addition, cases before these courts must be concluded within 60 days. Some 651,670 cases are pending in the court system. Some of these cases have been in the system for more than five years.

I am committed to reducing these numbers so that no case exceeds three years at the trial court or more than one year at the Court of Appeal. During the last 100 days, 477 cases with a value of Sh2.5 billion were referred to mediation. Of these, 249 cases were processed and another 129 cases with a value of Sh152 million were fully resolved.

Q) What informed the recent mass transfer of judges yet they can work in their present stations because of virtual hearings?

A) We actually haven’t had mass transfers. What we had was a transfer of those who were moved from their stations. I don’t think they were more than 10. Seven judges were promoted to the Court of Appeal and there are judges who served at one station for more than three years.

We have a transfer policy that says after every three years, you go to another station or another division. It is necessary that we comply with our own policy, it is necessary also that you align skills and also to provide equity.

Every judge would like to serve in Nairobi because most of them are settled in Nairobi, but we have courts all over the country and all these courts belong to us, Kenyans. If I am a good judge then even the furthest court in Vihiga or Kwale deserves a good judge.

Q) What is that one thing you would want Kenyans to remember you for as chief justice?

A)My dream is to have Kenya where Kenyans are empowered to know their rights because actually it is drawn from my vision about social transformation. We cannot talk about the transformation of the Judiciary alone we must talk about the transformation of society.

Chief justice who stood out to say let us reduce conflict in our society, let us avoid pitfalls that bring us into conflict with the law. I want to be remembered for a very independent judiciary a judiciary that stands out like other arms of government with state-of-the-art Judiciary headquarters and the Supreme Court that engenders the confidence of Kenyans.

Q) Different departments within the Judiciary are led by women and Kenyans believe that you have taken feminism too far. What do you say to that?

A) That is interesting. I wonder whether they have had problems when those positions were held by men. Up until 2012 when we joined the court of appeal, it was all men and nobody asked a question but let me say this yes, we have women who are presiding judges.

The Judiciary is hierarchical, a senior-most judge becomes the presiding judge of that court. These women judges have been here for years with over 30 years and now they are senior and when the position filing happens it happens that women are senior-most judges therefore, they take the position.

Edited by P.O

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