Wednesday ,12th May 2021
RE: MEMORANDUM OF THE APPROVAL BY THE NATIONAL ASSEMBLY OF HON.LADY JUSTICE MARTHA KARAMBU KOOME FOR APPOINTMENT AS THE CHIEF JUSTICE OF THE REPUBLIC OF KENYA AND PRESIDENT OF THE SUPREME COURT.
This memorandum is submitted to the Departmental Committee on Justice and Legal Affairs by Centre for Rights Education and Awareness (CREAW) pursuant to the call for submission of memoranda by the Departmental Committee on Justice and Legal Affairs as part of the public participation.
CREAW is a national feminist non-governmental organization whose vision is a just and equitable global society. CREAW uses bold, innovative and holistic interventions for the realization of women’s rights. Our programs have over the years focused on challenging practices that undermine equity, equality and constitutionalism, promoting women’s participation in decision making and deepening the ideology and philosophy of women’s empowerment.
CREAW works with both men and women who are committed to women and girls’ wellbeing. Importantly, we have continued to be at the forefront in championing adherence to the constitutional principle of two thirds in appointive and elective positions. Together with Kenya Women Parliamentary Association and other actors, we have worked to ensure that the National Assembly enact laws to actualize the realization of the two thirds principle
In furthering our mission to increase presence of women leaders in all decision-making levels across all spheres, as well as promotion of an environment where women are encouraged to lead and succeed. CREAW Kenya submits this memorandum to the National Assembly in support of the appointment of Hon. Lady Justice Martha Karambu Koome as Chief Justice of the Republic of Kenya and President of the Supreme Court.
Our views are not only premised on the principles and best practices of international and regional instruments on judges’ appointment and selection but also on the very many years that we have known and worked with the Hon. Lady Justice Martha Koome in advancing the Social , Economic and Political development of our Country.
It is for the following reasons that we unequivocally support the appointment of Hon. Lady Justice Martha Karambu Koome:
The centrality of equality and inclusion principle in fostering sustainable development of our nation cannot be gainsaid and no wonder it has been provided for in various international and regional instruments. Gender equality aligns with the provisions of regional instruments such as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol). Further, Article 10 of The UN Basic Principles on the Independence of the Judiciary provides that judicial appointments should not be based on discrimination on the grounds of race, color, sex, religion, political or other opinions, national or social origin, property, birth, etc.
More importantly, it is the belief of CREAW Kenya that the appointment of the Chief Justice should be done in a manner which advocates for gender equality as provided under goal five of the sustainable development goals to provide women and girls with equal access to education, health care, decent work, and representation in political and economic decision-making processes.
CREAW Kenya writes to endorse her appointment, because she is eminently qualified and has earned it. Her 33 years’ legal experience is indisputable in the legal world and has worked her way from the bottom up. Fifteen of those years have been expended as a practicing advocate, 9 years as a Judge of the High Court, and 9 years as Judge in the Court of Appeal.
Martha loves this Country and has been indefatigable in her quest for legal reforms, within and without the Judicial precincts. She has carved a niche as a judicial luminary. At a time when there was a national hue and cry for constitutional and legal reforms, she distinctively led the Law Society of Kenya as a Council Member (1995-1997), and played a central role in pivoting public discourse on government and societal excesses.
As a founding member of the East Africa Law Society she promoted and protected the rule of law in the East African Community. She led gracefully, in the constitutional making processes at Ufungamano House and Bomas of Kenya, chairing the Committee on the Bill of Rights, and played influential roles in the sector wide reform committee (GJLOSS) led by the Judiciary, resultant of which was a justice reform strategy blueprint.
Martha, is a Giant of Human rights, Children and Family Rights. Recently, she was feted as a runner-up for the UN Kenya Person of The Year 2020. Her advocacy for the rights of children was instrumental in the establishment of the Family Division of the High Court. She has also chaired a special taskforce of the National Council on the Administration of Justice on children matters that highlighted the plight of children in the Justice system. During her tenure as the Chairperson for the Federation of women lawyers (FIDA), she provided leadership that set FIDA to be a leading and bold Women Rights organization not just nationally but regionally and globally. .
CREAW asserts that the appointment of Martha Koome as the chief justice will further the two third gender rule as provided for in the constitution. The discourse on the two third gender rule has been a hard one to canvass. CREAW has particularly been keen on this and pursued various strategies including being petitioners in a number of court cases . Whereas all the bills to give effect to the realization of the principle have been futile, the country has made progress including the bold advisory by the Emeritus Chief Justice David Maraga. We are convinced that with a trusted leader and a proven advocate for women rights such as Lady Justice Martha Koome , there can only be progress on this matter of two thirds.
The work that Lady Justice Martha Koome has done in the field of women’s human rights is particularly outstanding . She was among the individuals that helped write women rights into the constitution and consequently defend them. Additionally, Justice Martha Koome co- founded and chaired the federation of women lawyers (FIDA) in Kenya. The role that this organization has played in promoting Gender Equality will forever be etched in our history books particularly in promoting access to justice for the poor and marginalized groups.
Justice Martha Koome has been instrumental in advocating for the rights of children. She believes that children are the bridge to our future and if they are not nurtured then we will not have a future to look forward to. She believes that the judicial system and the society at large has greatly failed children and has led to children being victims of the law as well as being in conflict with the law. It is her opinion that as a society we need to understand that children are at a vulnerable age and therefore need our protection. In addressing this matter, Justice Martha together with others in the judiciary have led by example. She has in the past prioritized children matters so that they can be heard and determined as fast as possible while keeping in mind the best interest of the child principle.
As a Chairperson of the National Council on the Administration of Justice (NCAJ) Special Task Force on Children Matters which was appointed by the Chief Justice on 29th January, 2016 whose mandate was to address gaps regarding the administration of justice with regard to children. The task force was able to encompass not only the state of children in the administration of justice, but also key recommendations on reforms needed in legislation, policy, practice directions and institutions in securing the best interest of the Child. The task force was able to review the Children’s Act in order to align it with the Constitution of Kenya, 2010. They developed practice directions of handling children during the current COVID19 pandemic including outsourcing laptops used in remand homes for the children to attend court virtually.
One of the landmark cases that Judge Koome has handled has been in ensuring fathers of children born out of wedlock take responsibility. In the case of JGM v CNW  eKLR, at the High Court of Nakuru, Lady Justice Martha Koome held that a father of children born out of wedlock can and will have parental responsibility for such children. The lady Justice went further to state that the Children’s Act discriminated against children born out of wedlock. Justice Koome stated that Section 24(1) of the Children Act provides that where a child is born out of wedlock the parental responsibility is placed on the mother in the first instance. The father can acquire parental responsibility if he makes an application to the court seeking parental responsibility or where the father and mother by agreement provide for the father to have parental responsibility for the child. This provision has been criticized for its differential treatment of children born out of wedlock. She remarked that Parliament needed to amend the Act and make it possible for either the mother, child, guardian or anybody to make an application for parental responsibility even for a child born out of wedlock. Further, the Children’s Act clearly states that the welfare and the best interest of the child is of paramount consideration and every judicial officer is enjoined to bear that in mind and Judge Koome encouraged other judicial officers to uphold this principle when deciding matters concerning children.
This ruling by the lady Justice further demonstrates her willingness and ability in furthering the rights of children. With her at the helm, we are sure that our children will be protected.
Centre for Rights Education and Awareness submits this memorandum to unequivocally support and endorse the appointment of Hon. Lady justice Martha Karambu Koome.
Her appointment as the Chief Justice of the Republic of Kenya and President of the supreme court will not only be historic as the first female Chief Justice and President of the Supreme court but it will indeed be a message to women and young girls in Kenya of how they are “valuable , powerful and deserving of every chance and opportunity in the world to pursue and achieve their dreams”.
https://thecommonwealth.org/sites/default/files/pressrelease/documents/Compendium%20on%20Judicial%20Appt%20Tenure%20and%20Removal%20in%20the%20Commonwealth.pdf;  The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, (the Maputo Protocol), was adopted on July 11, 2003 to complement and strengthen the articles of the African Charter related to the protection and promotion of women’s rights. It is an important instrument of reference given its broad provisions that seek to protect the rights of women, and it is a symbol of the commitment of African States’ to end discrimination, violence, gender stereotypes against women and other violations against women.  Article 27 and 81 of the Constitution of Kenya, 2010  Business Daily, ‘Martha Koome: Judge with a soft spot for children’(2020) <https://www.businessdailyafrica.com/bd/lifestyle/profiles/martha-koome-judge-with-a-soft-spot-for-children-2725884> accessed on 06/05/2021  Ibid 3  Ibid 3  Ibid 3  NCAJ Special Taskforce on Children Matters, ‘Special Taskforce on Children Matters’ (2016) < https://ncaj.go.ke/committees/special-taskforce-on-children-matters/ > accessed on 06/05/2021  Ibid 11  NCAJ Special Taskforce on Children Matters (n 10)  Ibid 12