I wish to state that I had no part to play in this Constitutional process which was undertaken almost two years ago. Upon forwarding the names to the President, the Chief Justice and the JSC became functus officio (ceased to have any role)
Chief Justice Martha Koome began to face intense, unprecedented scrutiny from across the legal and public sectors as soon as she was nominated and delivered her maiden speech.
Koome pledged to protect the independence of the Judiciary and said any party trying to direct the Court's work would be interfering with the Constitution.
The ceremony was closely watched since the Executive has been accused of interfering with the Judiciary through skewed, starvation of budgetary allocations and defiance of the judicial process.
Koome called on the other arms of government — the Executive and Parliament — to ensure adequate budgetary allocations that support the Judiciary.
President Uhuru Kenyatta told the Supreme Court president it “was not his place to teach them how they should do their job”.
On June 1, Koome attended Madaraka Day celebrations in Kisumu where Uhuru blasted the Judiciary over what he termed irresponsible rulings that negate the people’s will.
His remarks were seen as a worsening of the already-sour relationship between the Judiciary and the Executive.
The President said the courts had "tested Kenya's constitutional limits" through anti-Executive verdicts. The Chief Justice had been in office for barely 10 days. It was a reference, among others, to the High Court's declaration of the Building Bridges process to be unconstitutional, null and void.
All eyes were turned to Koome but the Chief Justice kept off the debate and a day after, she promised to follow in the footsteps of former Chief Justices Willy Mutunga and David Maraga.
Three days later, President Kenyatta appointed 34 judges and left out six, including those who recently nullified BBI, calling them "unsuitable". This sparked uproar from across a broad section of Kenyans who accused the head of state of violating the law.
Tough questions then emerged over Koome's studious silence as she did not immediately comment on the controversy.
Claims emerged Koome was kept in the loop about Uhuru's plan to exclude six JSC-recommended judges on Thursday, almost two years after JSC forwarded the names to him for approval.
Law Society of Kenya president Nelson Havi also said Koome was consulted by the President before the gazettement of the 34 judges — and exclusion of the crucial six.
Koome broke her silence a day afterwards, distancing herself from the recruitment process, and urged Uhuru to appoint the remaining six judges.
“I wish to state that I had no part to play in this Constitutional process which was undertaken almost two years ago. Upon forwarding the names to the President, the Chief Justice and the JSC became functus officio (ceased to have any role),” she said.
During her recruitment interview, Koome proposed negotiations with the Executive over the stalled appointment of the 41 judges of High Court and Appellate Court stations as well as other sources of tension.
These remarks sparked a conversation that the Judiciary may not be as independent as had been hoped.
Nairobi-based lawyer Ahmednasir Abdullahi claimed Maraga had several times rejected a proposal to appoint only a portion of the list.
“To his credit, Maraga refused about four times a proposal to have 32 out of the 41 judges sworn to office. His [Maraga's] retort was all or none,” he stated.
Kenyans are also watching whether Koome will sustain the tempo to clear a backlog of cases.
For Chief Justice Emeritus David Maraga it was all 40 Judges or none. Chief Justice Martha Koome has weakened the Judiciary by conceding to the rejection by Uhuru Kenyatta of four judges and two magistrates
The Judiciary has been running a programme to clear the backlog following public outcry for swifter administration of justice.
Reports have shown that close to half of the unresolved cases in the courts have dragged on for more than three years. The delays have been linked to an increased number of Kenyans rushing to the Office of the Judiciary Ombudsman to register complaints.
The ideal time from the date of filing to conclusion is one year. A case that drags on for more than a year is considered in the backlog.
Kenyans will also be monitoring if Koome will continue putting up new court facilities even with a strained budget.
The Judiciary had a financial resource gap of Sh23.6 billion, or 63 per cent of the total resource requirement for 2020-21.
Further still, the Judiciary Performance Improvement Project, which was 90 per cent supported by the World Bank from 2013-14 financial year, ended in October last year.
Kangema MP Muturi Kigano, who chaired the National Assembly's Justice and Legal Affairs Committee that approved Koome, said the new CJ must reclaim the lost glory of the Judiciary.
Ruaraka MP TJ Kajwang' said Koome must be ready to face criticism in the course of her work without hiding under the cover of judicial independence.
“If we are not careful, this issue called independence of the Judiciary could be a big elephant in the room,” he said
Political analyst Joseph Mutua said Koome's tenure is under intense scrutiny since her recruitment was politicised right from the beginning.
“There were people who said she was among the state's preferred candidates. Others said she had been sponsored by the 'deep state'. All this has made people watch her every move,” Mutua stated.
He said claims even emerged the President would not want a Chief Justice who would keep bothering him.
“Another reason why she is facing so much scrutiny is because those who are heavily criticising her are from the legal fraternity,” Mutua said.
Already, Havi seems to be comparing Koome with her predecessors in the running of the Judiciary.
“For Chief Justice Emeritus David Maraga it was all 40 Judges or none. Chief Justice Martha Koome has weakened the Judiciary by conceding to the rejection by Uhuru Kenyatta of four judges and two magistrates,” he stated.
Maraga insisted on the appointment of all 40 judges. One of the judges, Harrison Okeche, died in a road accident last year.
While rejecting the list in 2019, the President cited integrity issues among some judges. In the latest rejection of 'anti-BBI judges', he cited unsuitability, not lack of integrity, without elaborating.
Maraga said if the Executive's allegations were true, those persons should not be serving in the courts but proof was needed.
The President maintained that some of the judges on the list had questionable integrity.
Interestingly, Uhuru has several representatives in the JSC who are Attorney General Kihara Kariuki, Olive Mugenda, Felix Kosgei and a nominee of the Public Service Commission who took part in the interviews.
