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Lady Chief Justice Martha Koome yesterday described the arrest of two High Court judges as the worst infringement on the independence of the Judiciary as she reflected on her achievements within her first 100 days in office.
However, Koome is confident that her dialogue with the government would lead to a formulation of clear guidelines stipulating how judges and magistrates implicated in criminal activities are dealt with.
But despite the arrest of the two judges, Koome is proud she has accomplished almost all her targets within the first 100 days, in particular the appointment of the nominated judges, establishment of Small Claims Courts and clearance of case backlog.
In order to deter the practice of arresting judges within the chambers from recurring, the Judicial Service Commission (JSC) under Koome’s leadership is apparently liaising with the Interior Ministry, the Attorney General and the Inspector General of Police to formulate guidelines under which errant judicial officers would be dealt with.
In her interview with journalists, Koome said the arrest of Justices Said Chitembwe and Aggrey Muchelule not only caused tension, fears and concerns within the Judiciary but had also sent shivers across the country.
“Judges and magistrates are individuals occupying unique positions in the society.
They are the people charged with the responsibility to protect our constitution, the rule of law and human rights.
Storming their chambers to arbitrarily arrest them is the worst interference with the independence of the judiciary,” Justice Koome said.
Approached Interior CS
Soon after the incident, Koome says she approached Interior Cabinet Secretary and Inspector General Hillary Mutyambai and agreed to come up with a protocol to guide such incidents in future.
“The same way police cannot storm parliament to arrest MPs or enter State House to arrest the President is the same way judges and magistrates should be treated.
If a judicial officer is in infraction of the law, the police should approach JSC and tell them the offence,” Justice Koome argues.
She says JSC would consequently summon the judge or magistrate with a view to taking action without necessarily dragging them into police cells or embarrassing them in public as they are handcuffed and forced to record statements at police stations.
In July, detectives from the Directorate of Criminal Investigations (DCI) raided Justices Chitembwe and Muchelule’s chambers after an alleged tip that they were about to receive Sh7 million as a bribe.
Although after a daylong interrogation of the two judges, detectives said they had not recovered anything, DCI boss George Kinoti later told the High Court that detectives recovered Sh5.7 million from a woman who he claimed was to deliver the cash to the judges.
Justice Koome is also firm on her resolve to protect the independence of judiciary, vowing to disregard any directive or summons from any quarter that would lead her into breaching the constitution.
“I am not afraid to appear before anybody, but if anyone summons me with an aim of making me breach the constitution on the way we operate and appoint judges, I will simply tell him or her, sorry please,” Justice Koome said, ostensibly on reference to her recent protest to numerous summonses from Parliament.
Unlike her predecessor Chief Justice David Maraga, whose tenure was characterised by sour relations with the executive, Justice Koome says her administration has received positive support from the government.
“I see no tension in our relationship, but rather the possibilities of us engaging in dialogue to discuss outstanding issues.
In fact, we are planning a round table meeting to address grey issues like the need to rest court orders and the independence of the Judiciary.
I usually compare the government to a three-legged stool... if you remove one leg, the stool can’t stand,” she said.
On frequent complaints by the government over some rulings and judgments, Koome says judges and magistrates have “learnt to live with them” as part of dissatisfaction from any other litigant.
“Sometimes the government has reacted in a way that any other unsatisfied litigant would. That is alright and their right. But any dissatisfied litigant is free to appeal against any ruling he deems not right,” she says.
Koome describes the appointment of the 34 judges within the first month of her tenure as a great milestone which improved on the delivery of service.
But just how did she sort out an issue that had dragged on for years under Justice Maraga?
Koome says that upon assuming office, she wrote to President Uhuru Kenyatta seeking for an appointment with three agenda items: Appointment of the judges, budgetary allocation and internationalisation of Judiciary Fund.
“I was pleasantly surprised when on the evening of June 4, 2021, a Gazette Notice was issued announcing the appointment of 34 judges, seven judges to the Court of Appeal, 18 judges to the Environment and Lands Court (ELC) and eight to the Employment and Labour Relations Courts (ELRC),” she said.
She now says her determination is focused on the appointment of the six remaining judges in accordance with the constitution.
Dormant appeals courts
With the appointment of 34 judges done, Koome immediately embarked on operationalising dormant Appeal courts in Kisumu, Mombasa and Nyeri whose services had stalled due to lack of enough judges.
“In ELC, we were able to send judges to new stations to deal with land matters in Kwale, Nyamira, Isiolo, Migori, Kitui, Kilgoris, Kapsabet and Vihiga while we were able to increase the number of judges in busy stations such as Nakuru, Mombasa and Malindi,” a visibly elated Justice Koome says.
In her determination to expedite the delivery of justice, Koome is now liaising with the Council of Governors to establish Small Claims Courts that would handle all disputes with a monetary value of not more than Sh1 million, with the matter being dispensed with within 60 days
From available statistics, the courts have resolved 762 cases out of 1,247 cases that were filed within the 100 days, indicating a case clearance rate of 61 per cent.
As part of her strategy to clear the 651,670 cases pending in courts, Justice Koome says she has put in place a policy to ensure all cases are heard and determined within a maximum of three years.