Chief Justice must refrain from subjective political declarations

By Eric Mukoya

The office of the Chief Justice established by Article 161 (2a) of the Constitution is revered for the power it carries, but importantly the significance and direction it provides on constitutionalism. It needs to be known as the custodian of the rule of law, justice, and legal integrity. It isn’t easy to understand why legal practitioners, for a long time, remained reserved almost to a course of self-preservation. It was easy to dismiss this practice that seemed to represent cultural superiority embedded in the language, occasions, the dressing, and sometimes, the associations of many legal practitioners.

The house of learned friends was then coined and continues to be used to date. It sounds pretty discriminative and even separatist in its effect, but maybe for a good course. Practitioners – whether as judges, magistrates, barristers, barons, baronesses, solicitors, attorneys, or advocates, all in the shell of bar and bench – have been required to operate in measured excitement to be in harmony with the nobility of their profession.

While most leave active duty, it is expected that they do not retire from wisdom. This is more reason why the office of the Chief Justice Emeritus was established. June 13 confirmed this. At Kenyatta University Parklands’ Campus, the two Emeritus Chief Justices, Willy Mutunga and David Maraga, launched the documentary titled the Journey to Justice, produced by the partnership of Kenyatta University School of Law and Konrad Adenauer Stiftung foundation. It is a demonstration that they only retired legal practice but not from the space of justice.  

It turns out that holders of this office cannot afford to live everyday life unwatched. Even their kitchen could be as sacred as the court they operate in. Their quest to remain ordinary must never be clouded by any hidden or unspoken, if at all, propensity to act ignorant. Judges, magistrates, and advocates are bound by unique ethical standards. No wonder a module of ethics is taught at the Kenya School of Law to remind the would-be practitioners of the likely impact associated with them concerning public expectation.

Those who sit at the bar and the bench are expected to speak and always stick to the truth. Even though the litigation processes are adversarial, this does not reduce their commitment to hold and propel the truth. Such a threshold is even higher for these professionals. In this regard, actions or inactions and attendant demeanour of a Chief Justice can be prosecuted by the slightest discomfort in and among the public because the measure of objectivism for the holder of that office is harsh.  

The Chief Justice is a Kenyan and part of what the Constitution refers to as every person. Lady Justice Martha Koome is the Chief Justice of Kenya. She is affected by Article 32 (1) of the Constitution, which provides for the right to freedom of conscience, religion, thought, belief and opinion. She is further bound by Article 33 (1), which gives the right to freedom of expression, including seeking or receiving information or ideas. It is difficult to impeach freedom of expression and the right to an opinion, especially when the person being spoken about is the Chief Justice. 

In May, the Chief Justice paddled into the debate of student discipline, which is a pet subject for many Kenyans, often angered by the behaviour of students, who have resorted to all forms of violence to resolve matters that befall them in their schools. Up to the point of emphasising the need for parents to help construct or deconstruct the behaviour and actions of their children, the Chief Justice was right as every other concerned person would. She said, “we do not encourage indiscipline at all; we must bring up our children, to encourage them, support them.” This was echoed by her deputy, Lady Justice Philomena Mwilu. However, the point of warning parents that matters of such nature, if brought before courts, would be dismissed with costs to parents on the assumption that motivation originated from undisciplined petitioners put the court in bad repute.

The Office of the Chief Justice should personify fairness, impartiality, and inclusion. It is the mirror of trusted adjudication, which requires that every action necessary be considered, provided that its legality is not doubtful, to protect it from public ignominy. We come from a past where courts were vilified for taking sides and working for the state. Today, part of the public continues to look at courts with sinister assumptions, including accusations of corruption, elitism, delayed and unjust behaviour, besides actions that sit unwell with judicial decorum.

Judicial and court officers, particularly the occupier of an office as lofty as the Chief Justice’s, need to be aware that public assessment and measurement of performance assumes wider socio-cultural lenses within and outside Chapter 10.

The Chief Justice must be reminded that her language, even in the past, is now in the interest of the public. She ceased being a judge of the Court of Appeal, and now presides over the highest court in the land. Let’s recall that sometime in 2020, in Civil Application Sup 4 of 2019 at Para 16, in a dissenting opinion, she said as much “these considerations give this case a twist and take it from the ordinary suit filed by women under the Section 17 of Married Women Property Act (MWPA).

The women there claimed they carried out domestic work and other duties; they conceived and bore children. This case ought to open another line of jurisprudence so that when the claim is by a man, it will be imperative for the court to know the principles to apply as men and women play different roles in a family. A man who cohabits with a woman in a property held in the woman’s name also needs to prove contributions that he made because merely lounging in a woman’s house while dominating the remote control for the Television Channels cannot entitle a man to a share of the woman’s property.

Secondly, whether consent by the applicant as a party to a marriage as envisaged under Article 45 (2) of the Constitution can be dispensed with as the applicant claimed she was married to somebody else.” Good point by the Chief Justice, the Court of Appeal Judge, as a call for new jurisprudence, but her language and tone, especially describing the man, were sexist, discriminative, and full of feminine vitriol. Our courts must never be associated with concepts and foul language that exude inhumanity, division, and discrimination.  

The public is reminded of the headline statement by Justice James Wakiaga of the” male slay king and woman eater” in the Maribe-Jowi Criminal Case number 51 of 2018. Legal culture, which generally refers to opinions, attitudes, values, and expectations regarding law and legal institutions by its people, demands a higher threshold for Judges and Magistrates. We cannot reenact a judiciary where judicial harassment is a norm. As judicial officers, we must resist the desire to exert our opinion in cases, especially those we preside over or are likely to. The court must always maintain its held-back demeanour, function, and impression. Those who work in and represent it must always protect it from the shame-on-me moments. Remember, the Constitution has allowed anyone to challenge those who misuse their powers. Hence through the Bill of Rights, the public will constantly demand the presence of a court that is beyond reproach.

The Chief Justice must remember that many parents recall and associate with her quest for children’s rights. She has constantly promoted the best interest of the child principle, and it’s on the right side of justice on matters affecting and concerning children. As its Chairperson, she gave meaning to the NCAJ Special Task Force on Children matters. She should recall her reward as the person of the Year Award from the United Nations in 2020 for standing up for children found in the Criminal Justice System. The Chief Justice is reminded that the measure of her actions or inactions, alongside the demeanour, is not restrained in the public court. It is liberally cruel, harsh, and crude, because only the good is expected from the office of the Chief Justice, especially when her blueprint highlights social transformation that is anchored on the principles of accessibility and efficiency; transparency and accountability; inclusiveness, and shared Leadership; cooperative dialogue and social justice.

The Chief Justice is aware that her tenure heightens gender and women empowerment discourse. The significance of the moment comforts many agents of gender justice to appreciate Article 27 (1) of the Constitution. They seem to harvest good results after many years of struggle campaigning for equal opportunities in every private and public space. Further, to tie the knot on this concern is the following: Justice Koome has been known as a reformist since her days at FIDA. Secondly, she is a mirror of an empowered group of women, previously seen as the most marginalized. The public is reminded that the Judiciary is led by women, right from the Chief Justice, her Deputy, and the Chief Registrar. Thirdly, utterances from such a high office could have the power to bind, even if the holder is not a politician.  

It is not always what we say that is the problem, but how we say it. Judicial and court officers need to be aware that public assessment and measurement of performance assumes wider socio-cultural lenses within and outside Chapter 10 of the Constitution because the occupier of the office of the chief justice creates, brings, and excites new opportunities to revisit the glass ceiling that women must break to continue infusing or integrating equality in policy, practice and attitude. It is therefore important for actors in the administration of justice that the Office of the Chief Justice must motivate, symbolize and signify justice in whichever form it interacts with the public. As it is said, words are powerful; let us learn to use them wisely. (

— The writer is a lawyer and the Executive Director of Undugu Society of Kenya.