By Francis Omondi
Lady Justice Martha Koome’s appointment as our Chief Justice causes me angst. It wrings hope yet wrenches something in my gut. Her reputation for human rights is without peer and without question. Yet her confession at the JSC interview showed a bent to support the government. I wonder which of her two pasts will define her reign. William Faulkner, in Requiem for a nun, warned, “The past is never dead. It’s not even past”.
There is Koome activist past. The legendary past as the chairperson of the Federation of Women Lawyers Kenya (FIDA). Koome, who from 2001 led civil rights organisations in securing women participation in the constitutional review. She frightened the Moi era regime. The government deemed her ideas dangerous in their battle. She pushed for children and women’s laws. Sought the release for people locked on trump up charges, whose rights the regime violated. It is inexplicable that they did not lock her in as well. That possibility frightened her… But not anymore.
Justice Koome hasn’t fought the government in a while. No sooner had she become a judge, than she jettisoned activism. In her own words, at the Judicial Service Commission (JSC) interview, her work at FIDA was situational. As a judge, she said “I have changed completely….” She said, “I am government, as the Chief Justice of the Republic of Kenya… I head the other part of government.” This is her immediate past. And of this, many are anxious.
Writing on race equality in America’s 1940s, Faulkner’s message, was that some day, the people will rise above these divisions and will recognize the ties that bind all. They will recognize the fundamental lie of racism. But the protagonist fails that test, with his very Southern attitudes and bigotries. Hence, the past is never dead. For Justice Koome, which of these pasts is past?
Our main worry is something that her 18 years’ duty as a judge has revealed. Petitioning the JSC to reject Koome’snomination, the President of Law Society of Kenya, Nelson Havi argued, her appointment will weaken the independence of the judiciary. Havi cites the questionable Saturday night sitting of the Court of Appeal, in the Republic v IEBC Khalef Khalifa and another (2017) eKLR. During which Hon Justice (rtd.) E.M. Githinji, Hon. Justice Fatuma Sichale and Hon. Justice M.K. Koome delivered a judgement Ex-parte (done in interest of one side only), a final order reversing the entire judgement of the high court earlier that morning.
Holding an open court, heard ex-parte undermined justice, whatever urgent reason there was. Besides, sitting outside working hours without being authorised by the embattled Chief Justice strengthened the “systems pliable” narrative. It eroded the public confidence in the judiciary’s independence. That the Supreme Court affirming their ruling did not remove this stain.
If Justice Koome is to deliver justice, she will have to regain her due north, i.e. that human rights past. Upholding justice must not be situational madam Chief Justice. Justice is about equal rights, and access for those being squeezed out.
Justice delivery ought to commence within the Judiciary.
While interviewing Justice Koome, Commissioner Everlyn Olwande spoke for the Judges and magistrates. She spoke out of their fears using piercing allegory and questions. Is the judiciary hurtling fast towards another purge? The signal has always been claiming corruption in the judiciary. There was the radical surgery under Justice Aaron Ringera, or Judicial Vetting that saw another swath of judges evicted, these didn’t clean the perception.
In 2019, the state shifted its was on graft war on the judiciary. The Chief Public Prosecutor, Noordin Mohamed Haji, started a drifting charge against the Deputy Chief Justice Philomena Mwilu, that she “abused her office for personal gain, undermining public integrity in the judiciary”. Haji claimed he had conjured enough evidence for “a reasonable prospect of conviction.” He so instituted a criminal proceeding against her in public interest.
The case raised a critical constitutional conundrum. They charged the DCJ on suspicion of corruption, failure to pay taxes and improper dealings with a local bank. How can “a commercial transaction between her and a private institution”, amount to a criminal offence? This justice, Chacha determined.
But observers saw through the scheme. If they did not forge the case to force JSC to eject her from office, then it is a guise of the promised “we shall revisit”. This, in my view, was the veiled fear in Commissioner Olwande’s questions. It will be tragic if the Chief Justice cede her power to the government. She stated: “No, no, my question is, is there any other structures that can stop the Chief Justice from abusing power?”
The thin hope the judiciary must hang on is Justice Koome’s statement, “An institution like the Judiciary should be self-cleansing… and that from within and should be not from without.” This should “ring-fence the independence of the judges, the judges’ decision making and the institution” she said.
Chief Justice Koome’s major challenge will be delivery of Justice to Kenyans. With compromised legislature and executive working on its own agenda, the Judiciary, as the custodian of law, remains the guard rail holding Kenya from tumbling into the precipice of chaos.
Governments have a propensity to oppress. Uhuru Kenyatta’s government isn’t unique in its little regard for the citizens justice. Justice Koome inherits a justice department the regime has battered to pulp with a punitive budget cut in the Judiciary, disregard of courts’ authority, and derisive rhetoric. How else can we explain the Presidents’ delay in appointing the 41 judges, the JSC recommended mid-2019? This delay, Justice Maraga complained, made work difficult for the courts. Makokha Kwamchetsi considers president’s agenda was to diminish the stature of the Judiciary. (https://www.theelephant.info/features/2020/08/29/)
I appeal to Chief Justice Koome’s faith to make the judiciary work for Kenyans. An episode in Exodus one demands our attention, since it was a turning point in human history. Its heroines are Shifra and Puah, two outstanding women. The midwives Pharaoh instructed: “When you are helping the Hebrew women during childbirth on the delivery stool, if you see that the baby is a boy, kill him; but if it is a girl, let her live” (Exodus 1: 16). But they would not carry out the order: “The midwives, however, feared God and did not do what the king of Egypt had told them to do; they let the boys live”(1:17).
Commenting on the episode, Rabbi Jonathan Sack termed it as “the first recorded instance in history of civil disobedience”. The two women refused to obey their world’s most powerful man’s order. The order they judgedunethical and inhuman. To Pharaoh’s questioning, they explained: “Hebrew women are not like Egyptian women; they are vigorous and give birth before the midwives arrive” (1: 19). Pharaoh had no reply.
In refusing to follow the orders, Shifra and Puah showed that ultimate Sovereignty belongs to God. A notion that sovereignty belongs to the people is fallacy. No. The state and people who put it in power can err. Rabbi Jonathan Sack argues that moral law transcends and may override the law of the state.
Kenyans expect independence of the Judges, and freedom for the judiciary officers to act in interest of justice and not to protect power. Explanation such as, in IEBC v Khalef Khalif case, excuse of being empaneled and acting on public interests won’t hold.
During the 1946 Nuremburg trials, the war criminals’ plea was “… they were merely obeying orders, given by a duly constituted and democratically elected government”. But for a new legal concept of crime against humanity, the holocaust’s perpetrators guilt would have remained unestablished. Which Sacks comments: “The Nuremberg principle gave legal substance to what the midwives instinctively understood, that there are orders that should not be obeyed, because they are immoral.” So, any human order transgressing the will of God is by that fact alone ultra vires. Shifra and Puah are the first to teach humanity the moral limits of power.
We are a country, it seems, bankrupt of goodness. A space filled with evil we commit to each other. A good judiciary, without our cooperation in shunning evil against others, will become as useless as a scarecrow after harvest. We ought to do good because that’s what a human being is supposed to do.
It has confounded me how attractive evil is to others. We give undue attention to evils’ whisper or shouts. Not that evil does not demand confrontation, but I wonder why it is so elevated. The formula in which evil reigns is bad versus good. Toni Morrison, the 1993 Nobel Prize winner for literature, noted that “Evil has a blockbuster audience; Goodness lurks backstage. Evil has vivid speech; Goodness bites its tongue.”
To understand goodness for humanity, Toni explored the term altruism, the other, rather selfless compassion for the “other.” In her research, she learned something about altruism, weight, its urgency, and its relevance in contemporary thought. What defined goodness for her was a curious incident in the Amish community of Pa. USA. On Oct. 2, 2006, Charles C. Roberts 32, arrived at the West nickel Mines Amish school and ordered the male students to leave. He allowed a pregnant woman and three women with babies to leave. Roberts lined up 10 girls, ages 9 to 13, and shot them, killing five girls and injured five others. Then killed himself.
Although Roberts was not Amish, the community forgave him, refused to seek justice, demand vengeance, or even to judge him. They visited and comforted his widow and children, just as they embraced the relatives of the slain. The Amish are averse to any killing of human beings. In refusing to judge Robert, the Amish community asserted, it was God’s place to judge. They said nothing or very little to outside inquiry. Held no press conferences and submitted to no television interviews. But only cautioned when saying, “Do not think evil of this man.” They buried their dead, then attended the killer’s funeral the following day. Then built a new schoolhouse, having torn down the old one.
Their silence following the slaughter, along with their deep concern for the killer’s family, seemed to Toni at the time characteristic of genuine “goodness” or altruism. And she became fascinated with the term and its definition.
Toni Morrison identified three definitions of altruism. Altruism is not an instinctive act of selflessness, but a taught and learned one. It might be an ego enhancing in a desperate wish to decrease self-loathing as well. While others argued, altruism as an embedded gene firing to enable the sacrifice of oneself for the help of others. Such sacrifice for kin and/or community is innate, they claim. And is built into our genes, just as we hold individual conquest of others to be an instinctive drive that serves evolution.
This goodness we can learn. We can be taught goodness until it becomes a habit of helping strangers and/or taking risks for them at our expense. This should override the Goodness as instinct, because of genetics inclining us to protect our own kin or group such that what we seek for our group extends to all the people we meet. The unquestioning compassion to support not just kin but of members of the group.
Mr. Justice John Khamoni (rtd) learnt this goodness. As a result, the Law Society of Kenya in 1999 awarded him distinguished service in administration of justice. Award which the then Chief Justice barred him from receiving. And in 2015 he received the 3rd Justice C.B. Madan Prize 2015, for his contribution in justice administration (Walter Khobe The Platform No. 13/14 Dec/Jan 2015/2016 p. 36-39). In my view, he is an example of altruism in the judiciary.
Two of Justice Khamoni’s acts of goodness were done at significant risk to his carrier in the judiciary. For instance, in November 1991, at the peak of the movement for multi-party reform, the police arrested leaders of the famous proscribed Kamukunji meeting at Nairobi and charged in different centers in the country. The magistrate had refused the bail applications for James Orengo and Luke Obok. This case, therefore, reached the High Court in Kisumu before the newly appointed Judge, Mr. Justice Khamoni. In that charged atmosphere, Khamoni considered the application on legal principles of the grant and refusal of bail, and in an unimpeached ruling, He granted both applicants bail.
While in 1996, Justice Khamoni issued orders of prohibiting oppressive criminal proceedings by the state to punish opponents in settling civil cases. In Republic v Jared Benson Kangwana, Nairobi High Court Misc. Application No 446 0f 1995. Kangwana filed application praying for orders of judicial review. The court faced an application that continued criminal prosecution amounts to a travesty of justice. While Khamoni affirmed the AG’s unfettered discretion to institute and undertake criminal proceedings, he qualified the discretion, arguing that they should exercise it in a quasi-judicial way and not contrary to public policy. Insisting that the state must strain be extra alert to make sure that criminal proceedings are not used to settle civil disputes. Justice Khamoni rejected any party starting criminal proceedings to cajole an opponent to submit to judgement. Khamoni opposed the invocation of the law in unsuitable circumstances for wrong ends.
Justice Khamoni’s vision for a criminal justice system was one averse to oppression. He held that the high court had a duty to prevent vexatious and oppressive prosecutions, instituted for an improper purpose, mala fide, hence an abuse of the court. The two nurses acted like good people. So did Justice Khamoni, and that in quiet. By their act we learn to “feared God”, a generic description of those who have a moral sense.
Have we wondered why Hon. Amos Wako changed during his 20 years as Kenya’s Attorney General? He served as LSK chairman from 1979 to 1981. And was a member of the UN Human Rights Committee between 1985 and 1992. The honour we paid him and the owe in which we held him reached beyond Kenya to places far away and in countries where the intelligence of Africans is the source of much amusement. Thinking he would check the Nyayo era excesses turned into a futile dream. As head of the state law office, and over saw torcher and suppression of Kenyans agitating for multi-party rule. He watched the wanton human right abuses without a wimp. Although to his credit, Kenya achieved multi-party rule and change of constitution during his tenure. But the KANU government tethered him to the Goldenberg scandal, a long-running corruption scandal his entire time as Attorney General. Which led to his sanction by the USA government.
The government is a toxic soil. This is something insightful we now know. Something we didn’t know at the beginning. This soil is bad for certain kinds of flowers, to borrow the words of Claudia at the end of Toni Morrison’s “The Bluest Eye”. Certain seeds this soil will not nurture, certain fruit it will not bear. Will Chief Justice Koome thrive in this soil?
When we say the past is just a prologue, we mean the past should not enslave us, rather we spring into bright day from lessons we learnt from that dark past. Prologue because we follow a path blazed by leaders such as Shifra and Puah.
Rev. Canon Francis Omondi, A priest in the Anglican Church of Kenya, All Saints Cathedral Diocese Nairobi. He is an Adjunct Lecturer St. Paul’s University Limuru.
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