“It would be historical for this commission (Judicial Service Commission – JSC) to nominate a woman for the office of the Chief Justice, because it has never happened before.”
This was Justice Martha Koome’s response to challenges she would face should she become the Chief Justice (CJ) of Kenya, when she appeared before JSC on April 14, for the interview.
And she is indeed set to make history in the chronicles of Judiciary leadership. Since Kenya gained independence 57 years ago, no woman has risen to that position.
indeed set to make history in the chronicles of Judiciary leadership. and the head of the Judiciary, a huge role equivalent to a country’s President.
For Justice Koome who has practiced law for 33 years, leadership is not just about being a woman or a man. It is putting the best foot forward and diligently doing what is expected of you.
“None of the attributes of being a woman or a man would do anything in the office of the Chief Justice. It is the leadership skills that will deal with the challenges that we face in the Judiciary,” she said during the interview.
She added: “Leadership simply put to me is like driving a car, whoever sits on the driver’s seat so long as you have the proficiency of driving… the car will go. That is the same as leadership,” said Justice Koome who currently heads the criminal division at the Court of Appeal.
And the challenges are humongous. Backlog of cases some dating back to 1980s, an understaffed Judiciary, few courts, a digitised court system that is seemingly complicating access to justice and corruption among the judicial officers.
Based on her responses during the interview, Justice Koome has a concrete plan.
She said her vision and transformative agenda “is to have an independent Judiciary that is expeditious in the disposal of cases and is sensitive to the Kenyans’ (needs of access to justice).”
“The average distance for a Kenyan to access a court is 175 km. I would work hard to reduce it to maybe 100 km in the next five years,” she said.
Mr Samuel Ayora, an advocate of the High Court, denotes the backlog as a nightmare of a lifetime that Justice Koome should put first on her list of must-accomplish targets during her tenure.
He exemplifies a 1984 succession case in his fold. It was first lodged at a Nairobi Court before being transferred to Machakos in 2017. It is still pending.
“In fact, the beneficiaries have since died and the first generation of lawyers (who filed the case) have also died. All cases that have been in court for more than five years should be prioritised and concluded immediately,” he says.
For sexual offences, his appeal to Justice Koome is to ensure they are completed in three months.
“There are major bottlenecks in (litigating) sexual offences, especially when they take too long; a suspect is released (on bond or bail) and compromises the investigating officers or the family. Sometimes the witnesses are killed. All these could be (mitigated) if the cases are concluded within the shortest time possible,” he says.
Clearing the backlog can, however, not happen without adequate judicial officers, as he argues.
Should Parliament approve her appointment by President Uhuru Kenyatta, she becomes the first female President of the Supreme Court and the head of the Judiciary, a huge role equivalent to a country’s President.
For a start, he says Justice Koome should engage the Executive to immediately appoint the 40 judges nominated by the JSC in 2019.
When Covid-19 hit Kenya 11 months ago, the Judiciary then adopted a digitised system of filing matters and prosecuting cases.
It was perceived to be a saving grace in cutting down the backlog and easing up access to justice. This is not the case from Mr Ayora’s experience.
“With the e-filing, we expected the response to be immediate but it now takes a week. That is too long. It took just a day to get a response when we did the filing physically,” he explains.
He also says, the system is not user friendly and does not provide a stratified platform of uploading all the necessary documents for litigating a case.
On corruption, he says, it is critically crucial for the head of the Judiciary to rein on judicial officers who curtail access to justice.
At the moment, he is distressed over a domestic violence case that was withdrawn before it could make a ruling, a matter he says proves outright compromise of judicial officers.
Ms Teresa Omondi, an advocate of the High Court exudes confidence in Justice Koome’s prowess and techniques that she can use to drive transformative leadership in the Judiciary.
“She should be given time to play her roles as clearly outlined in the Constitution,” she says.
“She should be supported in terms of resources because that is also a frustrating underlying issue that also comes (with the position). Let the Executive start obeying orders of the Court,” she adds.
Her being a woman should, however, not be an excuse for anyone to overload her with immense or outrageous expectations, she says.
She is happy that Justice Koome’s nomination draws public consciousness that the position can be held by either gender.
“For the longest Kenya has existed, we only had a male CJ, so change is good. Now we have a woman leader who has climbed through the ranks, competent and has acquired that position fair and square,” she says.
Women have angled for leadership at the Judiciary without much success. It was not until 1982 when Justice Effie Owour was appointed the first woman High Court Judge in Kenya.
Justice Owour subsequently became the first female Judge of the Court of Appeal, the highest then before the Supreme Court became a reality in 2010.
Their spirited efforts to take the helm at the judiciary now seems to have yielded fruits with women now squarely in charge of the leadership at the third arm of government.
Justice Koome’s nomination has cemented women’s leadership in the Judiciary.
Apart from the two senior most positions in the judiciary now at the hands of women, with Philomena Mwilu as Deputy Chief Justice, there are other influential positions also being occupied by women.
The office Chief Registrar of the Judiciary is currently being held by Ms Ann Amadi. The Chief Registrar is the chief administrator and accounting officer of the judiciary making it also a very influential and powerful position.
Among the functions of the chief registrar is to prepare estimates of expenditure and submit to the National Assembly for approval and administer the Judiciary fund.
The holder of the office also acts as the secretary to the Judicial Service Commission; National Council for Administration of Justice.
The Office of the Principal Judge of the High Court another influential position is also occupied by a woman Lady Justice Lydia Achode.
Justice Achode took over in 2018 after Justice Richard Mwongo’s term came to an end after serving for five years.
The principal judge is elected by the judges from among themselves to serve for a non-renewable term of five years.
Their duties, as stipulated under the High Court Organisation and Administration Act, include the overall administration and management of the Court and ensuring the orderly and prompt conduct of the business of the Court.
In a recent webinar organised by International Commission of Jurists (ICJ-Kenya) dubbed Women and Girls: Know your Rights Justice Joyce Aluoch, who is the second woman Kenya High Court judge and former judge at the International Criminal Court (ICC) observed the gender composition of Kenya’s judiciary has changed for the better over the years.
“The situation in the Judiciary has greatly changed and we now have more women as magistrates and as judges in the High Court and Court of Appeal. We hope for more positions for women judges in the Supreme Court in the future,” she said.
Once Justice Koome assumes office, she will join other colleagues Justices Mwilu and Njoki Ndung’u, making the court compliant to two-thirds gender principle.
A recent gender audit in the Judiciary conducted by the National Gender and Equality Commission (NGEC) in collaboration with the International Association of Women Judges (IAWJ)-Kenya Chapter, revealed that the Judiciary is gradually and progressively becoming receptive to the principles
The audit carried out in 2019, showed there were 230 male and 242 female magistrates representing 48.7 per cent male and 51.3 per cent female magistrates respectively.
This, the audit noted, was a remarkable example of gender parity.
The audit, however, noted that 100 per cent of Kadhis courts, who are technically the same rank as a magistrate, are male, with no one mentioned as a gender concern.
While social norms and gender stereotypes effectively excluded women from pursuing careers in the justice field, there have been leaps and bounds since the 1990s, with women’s representation catapulting to almost parity in law schools.
By 2018, women judges and magistrates also made up a remarkable 48 per cent of the judiciary, almost nearing gender parity.
Once Justice Koome takes office, Kenya will be among the few African countries that have female chief justices.
As of 2018, there were only four women Chief Justices who were from Ethiopia, Zimbabwe, Zambia and Seychelles.