Koome should replace Baraza

Nancy Baraza’s case appears to be irredeemably hopeless. According to the Daily Nation of January 10, the police are ready to charge the Deputy Chief Justice with unlawful possession of firearm, illegal use of firearm and threatening to kill. These are extremely serious charges and if Baraza was a lady of integrity she would have offered to resign and save this nation a lot of time debating about her alleged misbehaviour. The departure of Baraza should give the reformists an opportunity to back Martha Koome as the next DCJ of Kenya.

Of all the people who were interviewed with Nancy Baraza for the job of the DCJ, Martha Koome impressed me most as a person dedicated to bringing about reforms in this country. Her impressive resume shows that she is not only an experienced lawyer and respectable judge of Court of Appeal but also a very dedicated reformist who has impressively served twice as the chairperson of FIDA and a Council Member of the LSK.

As a judge she has served in various parts of the country and knows the weaknesses of the Judiciary as an insider. Her strongest points however are the leadership qualities that are threatening to cause the downfall of Nancy Baraza. If the Deputy Chief Justice had taken the trouble to master all the leadership requirements found in Chapter Six of the new Constitution, she would today be still among the most respected personalities in our nation.

The saddest aspect about Baraza’s predicament is the fact that a lot of Kenyans had confidence in her ability to make sure the new Constitution was implemented to the letter by the Judiciary. Paradoxically it is that same constitution which is now instrumental to very early calls for her departure.

It is very hard to believe that Nancy Baraza had not read Article 73 (1) of the Constitution of Kenya 2010, which says that authority assigned to a State officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the new constitution which demonstrates respect for the people. The most challenging accusation against Baraza is her failure to show respect to Rebecca Kerubo Morara, an ordinary Kenyan respected and defended by the Constitution that put Baraza in the high office she was so proud of.

Unfortunately Baraza is also accused of failing to bring honour to the nation and dignity to the high office of the DCJ. The Constitution demands her to promote public confidence in the integrity of the office of DCJ. More than anyone else Nancy Baraza , as the number two boss of the Judiciary, should have known that the responsibilities of leadership vested in her high office required her to serve the people, rather than to go to supermarkets to exhibit the power to rule them.

If Nancy Baraza is not in a position to follow the demands of Chapter Six of the Constitution then she should be shown the door, my earlier stand of appealing for her apology notwithstanding. In matters of implementing the new Constitution this is a very crucial moment. Among the people who will make the loudest noise against Baraza will be the so-called “Reds” and “Watermelons” who were all the time against the new Constitution anyway.

These will be the people calling for Nancy Baraza’s exit in the hope that one of their own will take over to make the implementation of the Constitution even more cumbersome. This is why it is important to make sure that if Nancy Baraza goes , and it now looks very likely that she will, then whoever takes over from her must be a lady of impeccable credentials on matters of reforms. Such a lady is Martha Koome.

Her impressive CV says that Justice Koome has a strong background of pursuing matters of social justice and protection of the rights of all individuals and this is shown in the numerous boards that she has participated in Pro Bono including Kenya Women Finance Trust, Law Society of Kenya, ANPCAN, FIDA and a cause that is close to her heart the protection of children sees her work very closely with Imani Children’s home. In gratitude to her never ending support, Justice Koome has several children named after her that she supports financially and through social visits, says the resume.

The departure of Nancy Baraza , if at all it becomes the inevitable eventuality, will also see this country torn , as usual, along tribal lines. The Luhyas are likely to gang up even in Parliament to make it almost impossible for anyone else outside the former Western Province from taking over as the DCJ. There are already talks of Central Province politicians ganging up to support the candidature of Martha Koome. This is the tragedy of leadership in Kenya. Koome should be supported by all Kenyans because of her competence and not because she comes from the former Central Province.

Indeed Article 73(2) of the new Constitution says the guiding principles of leadership and integrity include selection on the basis of personal integrity, competence and suitability, or election in free and fair elections. Among the most important qualities of leadership recommended by the new Constitution are objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices.

As it is recommended by the Constitution, Martha Koome has provided selfless service based solely on the public interest, which is demonstrated by her honesty in the execution of public duties. According to All Africa.com Martha Koome wants the role of the deputy Chief Justice defined. She expressed those sentiments to the Judicial Service Commission when she was being interviewed for Nancy Baraza’s job in May last year. Koome was responding to Commissioner Ahmednassir Abdullahi's question who sought to know if she knew what she had applied for. All Africa.com quotes Koome saying that though she had the job description, there was need to develop the terms of reference for the position of deputy CJ.

According to Article 161(1) of the Constitution the Judiciary consists of the judges of the superior courts, magistrates, other judicial officers and staff. It establishes the office of Chief Justice, who is the Head of the Judiciary; and the Deputy Chief Justice, who is the Deputy Head of the Judiciary. Article 163(1) establishes the Supreme Court, which consists of the Chief Justice, who is the president of the court; the Deputy Chief Justice, who deputises for the Chief Justice; and is the vice-president of the court; and five other judges.

The Constitution says the Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President and appellate jurisdiction to hear and determine appeals from the Court of Appeal; and any other court or tribunal as prescribed by national legislation. If Nancy Baraza goes there will be political as well as tribal tug-of-wars to have her replaced by someone who will be manipulated by other powers outside the Judiciary. To avoid that Koome should replace Baraza.