The Supreme’s Supremo


The Supreme’s Supremo

Chief Justice Martha Karambu Koome has an almost sacred ritual. Once a month, the soft spoken but firm Chief Justice takes her golf clubs and wanders into one of the golf courses, where she spends hours on end playing golf solo. This has been Koome’s go to practice for taking steam off for as long as she can remember. No one can begrudge Koome for needing a time out. We all do, more so if one is tasked with leading one of the three arms of government.

After graduating from the University of Nairobi with an LLB and acquiring a Diploma from the Kenya School of Law, Koome began her 33 year sojourn as a legal practitioner in 1987, starting out as a Legal Associate at Mathenge & Muchemi Advocates. At the time, agitations for the return of multipartism were at a crescendo, with the Law Society of Kenya, the academia, the clergy and political dissidents joining forces against President Daniel arap Moi and his one party state. Koome found herself gravitating towards the pro-reform movement, where conscientious advocates found both an ideological home and an opportunity to lend their legal practice to the struggle by offering pro bono legal representation to those targeted by the state.

In those dark days, standing in court to represent a Moi detainee was a revolutionary act.

By 1993, Koome had learnt the ropes and decided to venture out on her own, setting up Martha Koome & Company Advocates, where she was a Managing Partner. However, for Koome, it wasn’t simply a matter of going solo, like she does when playing golf.

That early in her career, Koome had already experienced first hand the difficulties women endured in their pursuit for justice in Kenyan courts, especially in property-related matters. And so other than identifying with the broader pro-democracy movement, Koome set her mind to put up a practice geared towards supporting women issues, both as a lawyer and activist.

As Koome’s law firm was taking shape, the young advocate maintained her spot at the frontlines of the legal profession and the push for a new Kenya, managing to get elected to the Law Society of Kenya (LSK) Council in 1993 for a three year term. The LSK had differentiated itself as one of the fearless entities which could take on the state headon, and now Koome was one of the faces which had to face the Moi state.

Not wishing to limit her involvement to Kenya, the following year, Koome got elected as the inaugural treasurer for the East Africa Law Society (EALS) for a two year term. And as if keen to add to her bouquet one responsibility a year, Koome found a seat as a Commissioner for the African Committee on the Rights and Welfare of Children in 1995. Children’s rights had always been close to Koome’s heart, and with this new position, Koome further amplified the cause. All of this would count for something when Koome eventually became a judge.

However, it was the move by Koome and 15 other women in 1998 which permanently cemented Koome in the national imagination. Together with the likes of Kenya’s first Deputy Chief Justice Nancy Baraza, lawyer Betty Murungi, Kandara MP Alice Wahome, and Supreme Court Justice Njoki Ndung’u, Koome formed the Federation of Women Lawyers (FIDA), a women’s rights organisation which mainstreamed the women agenda in Kenya in a manner that may not have been done before. From pushing back against gender based violence to offering legal aid to affected women and lobbying for progressive pro-women legislation, FIDA was unignorable, with Koome being one of its most recognisable faces. Koome was synonymous with FIDA.

After the December 2002 general election, the National Rainbow Coalition (NARC) government came into power. Among its key promises was delivering a new constitution. NARC’s ascension into office coincided with the start of Koome’s term as Chairperson of FIDA, elected in 2001.

Through FIDA, Koome negotiated for the involvement of women in the constitution making process. The Constitution of Kenya Review Commission (CKRC) chaired by Prof. Yash Pal Ghai had already embarked on doing much of the ground work in delivering a draft constitution – the infamous Bomas Draft, which was adopted by the National Constitutional Conference sitting at the Bomas of Kenya, to which convention FIDA had delegates.

However, after the Executive revised the Bomas Draft and presented it at a referendum, where it flopped, the constitution making process went into a bit of a limbo, before the 2007/2008 post election violence jolted the country back to its senses.

In 2008, as part of implementing the never-again recommendations by various entities involved in the post-violence inquiry and analysis, Parliament passed the Constitution of Kenya Review Act, which formed among other committees, the Committee of Experts (CoE), which became the technical organ in the constitution making process. FIDA was again an active participant, piggy backing on its previous inputs at the Bomas of Kenya by presenting a fresh memorandum on the women’s agenda. FIDA’s input buttressed Chapter Four of the Constitution—The Bill of Rights.

It was while still at FIDA that The Expanded Legal Sector Reform Committee led by the Judiciary and chaired by Justice (Retired) Riaga Omolo extended an offer to Koome to join the committee, whose mandate was to transform the judicial system. Through the committee, Koome and others developed the blueprint which birthed the Governance, Justice, Law and Order Sector (GJLOS) reform initiative. Around the same time, plans were underway to appoint the mother of three as a judge of the High Court of Kenya. President Mwai Kibaki did the honors in 2003.

Coincidentally, Koome’s first posting after being sworn in as judge was to the Family Division of the High Court in Nairobi, a division of the court which FIDA had championed for. She later left for Nakuru as the resident judge. Koome was then promoted to head the Milimani Commercial Courts, then the Environment and Land Courts, before she was redeployed to Kitale in 2009. It was while in Kitale that Koome established and operated mobile court stations, serving litigants in the far flung Kakuma and Lokichar areas which prior to this had to go all the way to Kitale.

In 2012, Koome was elevated from the High Court to the Court of Appeal, serving in Mombasa, Malindi, Nakuru and Nyeri. It was especially in Nyeri where Koome’s bench cleared a massive backlog, bringing the court operations to real time—a first in the Commonwealth.

However, Koome’s work wasn’t without controversy – both the good and the not-so-good kind.

For instance, there was the 2012 matter where Koome and Justice Hannah Okwengu overturned a High Court order and gave former President Daniel arap Moi a six months window to vacate land belonging to his neighbor Malcom Bell. Bell had accused Moi of taking 100 acres of his land in 1981, claiming further that Moi had failed to honor what was a gentleman’s agreement between him and Bell’s deceased father – to sink a borehole, construct a cattle dip and supply electricity to their 1,200 acre farm. The case, which had first been heard by Justice Muga Apondi at the High Court, had been dismissed and Moi exonerated from blame. It was under these circumstances that Bell appealed the ruling, and in 2012, Koome and Justice Okwengu ruled in his favor.

There was also that 2017 ruling where Koome and two other judges — Fatuma Sichale and Erastus Githinji — overturned a High Court decision that found the appointment of Returning Officers for the 26 October 2017 repeat presidential election to be illegal. The bone of contention was that the bench hadn’t been authorized to sit by the Chief Justice, and that the judges had held the court session outside of the judiciary’s official operating hours. Being that these were election matters, the obvious conclusion was that the court was aiding one side of the political divide.

In her defense to the Judicial Service Commission, Koome explained that she had been empanelled by the then President of the Court of Appeal and now Attorney General, Paul Kihara Kariuki, and that the matter was of national importance.

Then in 2019, Koome and Justices Phillip Waki and Asike Makhandia outvoted Justices Daniel Musinga and Roslyn Nambuye to uphold the decision of the High Court (ruling delivered by Supreme Court judge Isaac Lenaola) that allowed members of the LGBTQ+ community to register an organization. The decision didn’t sit well with those who had imagined that being a staunch Christian, Koome would pick her faith over her human rights beliefs.

A year into office as Chief Justice, Koome assuaged the fears of her brethren by holding the inaugural Judiciary National Prayer and Fasting Day at the Chief Justice’s garden. She was a staunch human rights defender, Koome seemed to remind everyone, just as she was a Christian.

Other than organising the prayer and fasting shindig, Koome marked the crossing of that one year mark since being plucked from the leadership of the Court of Appeal’s Criminal Division and making history as Kenya’s first woman Chief Justice by parading her handful of wins – the reduction of case backlog by fourteen percent; the establishment of the Judiciary Police Unit; the negotiation for land for the construction of five small claims court in Nairobi; and setting up of the special Sexual and Gender Based Violence (SGBV) court in Shanzu, a first of its kind.

That said, Koome’s real test is how she will decide on the 2022 presidential election petition.

A chess player of note, Koome has perfected the art of moving in silence, not wanting to be seen as she approaches, so that when the opponent thinks they’ve got her in the bag, they realize late in the game that it’s Koome who’s got them bagged. And appreciating the value of making one’s moves openly yet tactically, Koome has perfected the art of putting all her cards on the table – like that time she was the sole member of the bench to insist on being vetted publicly by the Judges and Magistrates Vetting Board, unafraid that any skeletons may fall off her closet.

This thing of Koome playing her cards in the open, and letting naysayers speak down at her, could be the Chief Justice’s ace going into the 2022 presidential election petition, with everyone thinking they’ve figured her out. This grandmaster — coming after the jurisprudentially safe-playing Dr. Willy Mutunga and the recklessly courageous David Maraga — is about to make her play. Whichever way it goes, from now onwards, people shall put some respect on her name.

(Additional Reporting By Kanyi Wyban)

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