Let’s allow CJ Koome to work

  By Makau Mutua

                                            Professor at SUNY Buffalo Law School and Chair of the KHRC.
What you need to know:
Some of the recent attacks on the Chief Justice from political types are asinine.
Her detractors don’t fully appreciate, or choose to ignore, her constitutional responsibilities.
I’ve not shied away from calling out Chief Justice Martha Koome — a friend of long standing — when I’ve felt it was necessary. She’d be the first to acknowledge public criticism of officials, especially from friends, is the fuel of democracy. After all, she spent a large chunk of her life in frontline civil society human rights NGOs.
        However, some of the recent attacks on her from political types are asinine. So, today I write in CJ Koome’s defence. Back off, and let her do her job. I was particularly rankled by ad hominem tirades on her for chairing the National Multi-Sectoral Consultative Forum on Election Preparedness (NMSCF). Her detractors don’t fully appreciate, or choose to ignore, her constitutional responsibilities.
        Let me teach them Constitutional Law 101. Of the three branches of the republican democratic state – executive, legislative, and judicial – it’s the last that’s the guardian of legality and the rule of law. The Judiciary pronounces with finality what’s legal and constitutional, and what’s not. The Judiciary decides what conduct is permissible by the other two branches. They can appeal, but once the matter is settled by the Supreme Court, there’s no option but for them to lie prone before judicial orders. They have zero choice, and no exit, from judicial decisions. In that sense, the Judiciary is the first among equals when there’s a dispute about the legality and constitutionality of official action, conduct, or rule. It’s over.
        Critics of CJ Koome need to understand the constitutional design and the intent of the drafters of the 2010 national charter with respect to two key offices that reside in one human being. These are the offices of the Chief Justice and the President of the Supreme Court of Kenya.
        But first a basic truism. Most people don’t appreciate that the Judiciary — the third arm of the state — is part of the state. It’s therefore “political” in that sense because the whole state is a political instrumentality. The fact that the Judiciary “checks” the other two arms doesn’t make it less political. The exact opposite is true — the Judiciary is a very political branch — except it’s the “least dangerous branch”.
Predatory and colonising elite
Let’s interrogate the “two hats” of the head of the judicial branch. In one — the President of the Supreme Court of Kenya (SCORK) — the CJ has two important roles. She’s the most senior judge on the SCORK but she’s also its chief manager, or top bureaucrat. In her role as the most senior judge on the court, she sets the tempo and organises her colleagues to facilitate their roles as judicial officers of the SCORK. She is the top jurist on that court, although cases are decided by the majority. Judges on the SCORK will look to her for leadership and decorum. This is partially political because she must think of the public image and legitimacy of the court.
        The role of the President of the SCORK isn’t entirely “internal” or “judicial.” It’s also public-facing. But it’s in her role as Chief Justice that she assumes a more “political” posture. She must be ready to deal with a petulant, or obstinate, Executive bent on eviscerating judicial independence. The Legislature has often been cantankerous. She must deal with MPs whose inclination is to clip the wings of the Judiciary. She must protect judges, magistrates, judicial officers, and the entire infrastructure of the Judiciary from a predatory and colonising elite in the public and private sectors. In this, she must have a political spine. Only she can give judicial officers cover to do their jobs as professionals. She can’t flinch. 
        In her role as CJ, Justice Koome is the “headmistress” of the Judiciary, just as the Head of State is the “headmaster” of the Executive, or the speakers the “headmasters” of the Legislature. She must have sharp elbows, but needs to work collaboratively with the other two branches of government. She sits in, or chairs, a number of important organs. She chairs the Committee on the Administration of Justice, for example. She should receive intelligence briefings and other important security information. So her role isn’t confined to the four corners of the courts. It’s a failure of imagination — or perhaps it’s political chicanery — on the part of those who think the CJ must sleep in her judicial attire. 
        CJ Koome isn’t the first judge to chair, or participate in, extra-judicial organs charged with the election preparedness. Neither the courts, nor the Chief Justice, can afford to be an ostrich with its head buried in the sand as elections loom. We know how dangerous Kenyan elections can be. After the 2007 elections, for example, the country faced an existential moment and almost went to hell. The highest judicial officer in the land needs to be fully attuned to the mechanics, processes, and institutions governing the 2022 elections. All signs point to a nuclear cocktail. To be prepared is to be forearmed. CJ Koome is rightly in the mix.
Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School. He’s chair of KHRC. @makaumutua

Source: Sunday Nation today