- She has worked as an MP and also closely with the Executive.
- She knows the good and the bad of both worlds and is less likely to be swayed by emotions when leading the Judiciary
Supreme Court Justice Oliver Wendell Holmes was travelling by train to Washington, DC, one morning nearly a century ago when a conductor asked for his ticket. Holmes searched high and low for it until the conductor reassured him, “Don’t worry about your ticket, Mr Holmes. We all know who you are. When you get to your destination, you can find it and just mail it to us.”
“My dear man, the problem is not my ticket,” quipped Holmes, who was renowned for his quick wit. “The problem is… where am I going?”
Just like Holmes, we are faced with the same question in the search for our next CJ.
I’m a fourth year student at the University of Nairobi’s School of Law. Throughout my studies, I have learnt about and greatly admired Chief Justices Holmes and John Marshall. Unfortunately, we have not yet seen any precedent-setting CJ in our nation.
While they have put in the work and led the Judiciary, their work is hardly cited by anyone. We cannot even tell what their judicial philosophies have been.
But there is Supreme Court judge Njoki Ndung’u. Before even sitting on the Supreme Court bench, Justice Njoki made her mark not only as a lawyer but a progressive legislator.
Many praise her Sexual Offences Bill that gave the country a clear law on how to deal with sex offenders. Her parliamentary contributions include amendments to the Employment Act, 2007 providing for paid maternity and paternity leave, as well to the Political Parties Act, 2007 on affirmative action measures for women in political participation.
She also served as a member of the Committee of Experts that drafted the 2010 Constitution.
When the Supreme Court nullified the 2017 election, Njoki read out a dissenting opinion that left many questioning the overall decision.
Her bravery and eagerness to stick to what she believed in and the law was vindicated when the same Supreme Court upheld President Uhuru Kenyatta’s victory after the repeat election.
In her dissenting opinion, Justice Njoki said the right of voters was not respected by the ruling of the majority as the failure of technology could not subvert the will of the people.
She also revealed that unlike her four colleagues who nullified the election, she had an opportunity to examine all forms 34B and 34A, which were clearly signed by agents of both Uhuru and Raila Odinga.
And 2017 was not the only time that she has stood on the right side of history and the law. She recently gave a dissenting opinion saying it was not right for the Supreme Court to meddle with a political and budgetary process.
She had also earlier disagreed with the majority when it ruled that the Judges and Magistrates Vetting Board could not dig up the pasts of judicial officers. Her dissenting opinions have set her apart as a judge who clearly understands and respects the doctrine of separation of powers.
Her becoming CJ will also be a big boost to affirmative action as she will break a major glass ceiling.
We do not need a judicial activist, rather a leader that will cement the independence of the Judiciary, protect the rights of Kenyans and hold the office of the CJ to a new standard that will be respected by all.
We have seen how the leadership of the Judiciary matters, looking at how both Willy Mutunga and David Maraga, the first and second chief justices under the 2010 Constitution, conducted the affairs of the courts.
What we need is a leader like Njoki who has worked as an MP and also closely with the Executive. She knows the good and the bad of both worlds and is less likely to be swayed by emotions when leading the Judiciary.
In all her public engagements since becoming a judge, Justice Njoki has always outlined her vision to ensure that all Kenyans have access to justice equally. For all that she has achieved in the public sector and the judiciary, she deserves to be the next Chief Justice.