The JSC has unanimously agreed to nominate Justice Martha Koome as our next Chief Justice and President of the Supreme Court. If confirmed, Justice Koome will become the first woman to hold those two positions in our country’s history, and that is commendable.
She would become the third person to hold these positions under the 2010 Constitution. The first was Dr Willy Mutunga, who was nominated on May 13, 2011. Mutunga’s nomination was met with mixed reactions, with some saying his nomination as an outsider was demeaning to senior judges, any of whom could have been a better choice.
Others viewed the whole recruitment as a sham to deliver a pre-determined Chief Justice, especially given only one name was submitted by the JSC for the President to appoint.
The differing views notwithstanding, then President Mwai Kibaki appointed Mutunga as our first Chief Justice and head of the Supreme Court following the promulgation of the 2010 Constitution.
Mutunga went on to serve for five years. He retired after a term in office many would argue will only be remembered for tossing out former Prime Minister Raila Odinga and AfriCOG’s petitions challenging the declaration of Uhuru Kenyatta as President following the disputed 2013 election.
Mutunga was succeeded by then Court of Appeal judge David Maraga who, while being interviewed, told the JSC that in accordance with his Seventh-day Adventist faith, he would not work on Saturdays. Not even if there was was need for Supreme Court judges to handle presidential election petitions with strict time limits of 14 days.
Maraga served his five years and retired on January 12 this year. He will likely be remembered for having presided over the invalidation of a presidential election —the first in Kenyan history — earning him the wrath of the President and others, also a first.
Now comes Justice Martha Koome with the question being, will she also find herself presiding over a petition challenging the election of a president? And if so, how will she handle it? Will she go the Mutunga way, or the Maraga way?
Obviously, the answers depend on what facts unfold.
What can be said as certainly as one saying the sun will rise in the east and set in the west tomorrow, is that the loser of the next election will head to the Supreme Court with a petition; unless the winner is Raila/Ruto as president and deputy president in which case there will not be any need.
But that is a scenario two steps removed; there is a more immediate landmine the Koome Court must navigate, even long before the election is held. That is, what if the powers that be decide to extend President Uhuru Kenyatta’s time in office?
When I first penned a column about this prospect back in June of last year, many laughed it off as a figment of my imagination, but some of the very same people are now privately agreeing with my prognosis that an extension of Uhuru’s time in office is a real possibility.
The crux of my argument was a third term, or at least extension of time for Uhuru, was appropriate and even desirable because of interruptions caused by the coronavirus and the need to transition to a new government system would require time.
In a more recent piece, I further postulated that, while disruption caused by the coronavirus is a good enough reason to extend or add to Uhuru’s term, it is now even more imperative to extend the time because there is no way we can have (1) a referendum (2) laws to operationalise the new changes in the Constitution and (3) a general election all in less than one year from the date the referendum occurs.
To effectively manoueuvre around this landmine, Koome would need a seasoned judicial and political hand. That person is Justice Isaac Lenaola and the better position for him to exercise is wisdom is as Deputy Chief Justice.
Samuel Omwenga is a legal analyst and political commentator
(Edited by V. Graham)