JUSTICE MARTHA KOOME, THE JUDGE WITH ASWAG?

In this age of women empowerment, especially with the promulgation of the new constitution, there are women who rose to the towers without being aided by affirmative action. They rubbed shoulders with the so called male dominated society achieved incredible feats, one such person is Hon Lady Justice Martha Koome. The constitution under article 27 (3) and (4) prohibits discrimination and requires provision of equal opportunities. Article 98 (b) also provides for specific number of women to be nominated by political parties according to the proportion of the numbers of the senate and article 197 (1) also states that not more than two-thirds shall be of one gender in country assembly or county executive committee. As if that is not enough, article 100 provides legislation for the promotion of representation of women in parliament. The recent erronous appointments by the President which include Alnasir Visram as Chief Justice, Githu Muigai as Attorney General,Kioko Kilukumi as Director of Public Prosecution and the Auditor General without regard to the 6th Schedule ( article 262) section 24(2) and 29(2) of the constitution which provides for consultation with the Prime Minister and approval by the National Assembly, were met with immediate High court ruling that stated the nominations were unconstitutional since they did not include women therefore were discriminatory on them contrary to article 27(4) and (5), which prohibits discrimination on grounds such as race, color, sex and others. One wonders what if there werent any women as flamboyantly qualified as their male counter parts for these four monumental judicial positions, is there a legal guarantee that some of the seats should be set aside for them. My wondering further continues to when will these women positions set aside for them in parliament last? Will they still exist after they have been empowered or will there be an amendment to the constitution after empowerment? Enough about women and now we come back to the subject matter,Justice Martha Koome. She has really impressed me with her two major rulings which I am going to go through them in depth. It is the speed at which she is embracing the new Kenyan constitutional dispensation that impresses me, and hence the title the judge with a swag, meaning going with the new trend or fashion. It is also quite important to note that it takes uncanny boldness and audacity to come up with a ruling the breaks away from the status quo, especially not forgetting the fact that she is woman-the gender which needs affirmative action and empowerment. The two decisions are one involving the stay of execution in the matter of David Ndungo Maina v Zipporah Wambui Mathara, the chief matter here being the issue of civil jail for defaulting debtors and that of Republic v Enock Wekesa & Another [2010], which involved the issue on whether the AG was bound to give reasons to a subordinate court on the issuance of the writ of nolle prosequi. I will begin with the one involving civil jail for defaulting debtors. In this case Zipporah Wambui Mathara,a mother of four children, through her lawyer, brought an action to prevent being committed to G.K Muranga prison for failing to pay a debt of Shs. 339,855 to Mr David Ndungo Maina. The point behind committal to civil jail is that the debtor can raise an amount of Kshs 60 per day, through the services he renders to the prison authorities, and consequently the funds can be used to settle his or her debt gradually. The argument propagated her counsel, and which Justice Martha Koome on 29 September 2010 concurred with, was that committal to a civil jail was contrary to article 11 of UN International Covenant on Civil and Political Rights (ICCPR), which Kenya ratified in 1st May 1972. The article prohibits imprisonment of a person on the ground of inability to fulfill a contractual obligation.

The issue of unconstitutionality of civil jail is based on the fact that article 2(6) of the Constitution stipulates that, a treaty or convention ratified by Kenya shall form part of the Kenyan law. It therefore means that article 11 of ICCPR is a law that should be upheld in Kenya, by virtue of the doctrine of incorporation, which states that international law shall assume the effect of law in particular countries that have ratified as long as they are in tandem with the municipal law, they do not therefore need domestication. This signals a move towards a monist system which does not require domestication of international law for them to have force of law. It is however important to note the difference between inability and unwillingness. It is the person who is unable to pay the debt who is supposed to be protected and not the person who has the ability but has willingly refuted. The argument is that the person who is unable to pay will be brought to civil jail, without having a choice, and therefore this forms a basis for his or her discrimination in form of class, in that a pauper will be in jail, while the more privileged will never get near it. There are however arguments that this judgment, has been exaggerated to the landmark status which it is not worthy of, since section 38 of the Civil procedure states that imprisonment of the debtor should be after the court has satisfied itself that the debtor has a means to pay the money owed but has refuted or neglected to do so(in this case the applicant seems to be unable) Others have shown concern how of how creditors will acquire their money from debtors, especially in pertinent scenarios for example when the debtor, by acting through fraud or in bad faith, is unable to pay his debts. Will such offenders seek reprieve from the judgment? In such a situation, of course it will not be compatible with Article 11 of ICCPR, since law cannot protect offenders. It is also important to indicate that this judgment not completely ban civil jail, since there are sections of the Bankruptcy Act that provides for it for example in section 26. The others have been gone ahead to state that Justice Koome was only exercising his powers that are provided under the Bankruptcy Act, that is, staying arrest or committal pending Bankruptcy proceedings, and that that the people elevating this judgment to landmark status have really missed the point. Her other judgment that attracted attention to all teachers and disciples of the legal fraternity is the one concerning the writ of nolle prosequi.It involved the case of Republic v Enock Wekesa & Another [2010], the State counsel (Mr. Onderi) had appealed against a ruling made by a Magistrate court, in which the Magistrate in this particular court had dismissed the writ of nolle prosequi, on the basis that there was no reason given for it. The Magistrate went on to say that the power to issue the writ of nolle prosequi given in Section 82 of the Criminal Procedure Code (CPC), were now to be exercised according to the Transitional clauses of the Constitution of Kenya. He also stated that after all the constitution ranked higher than the CPC. Mr.Onderi had argued that the power of the AG to issue the writ of nolle prosequi of the CPC the Attorney General was not bound to give reason for issuing the writ of nolle prosequi to a subordinate court. Martha Koome dismissed Mr. Onderi and upheld the ruling and went further

to say justice is open and transparent and should be responsive and accountable. These are not fashionable terms any more, but a reality under the Constitution of Kenya 2010. If the state wants to exercise power of whatever writs, no one will stop them, as long as they meet the threshold of public interest, interest of justice and ensure non abuse of the court process. She however acknowledged that the Magistrate had overstepped his boundaries. This ruling has revolutionized the criminal justice system, in that nolle prosequi,(which now under the Constitution of Kenya 2010 is now vested on the Director of Public Prosecution)will now only be granted after cogent reasons are given. This will go a long way in ensuring that the writ is only exercised in public interest and in the interest of justice. Previously the writ of nolle prosequi was used as a weapon of saving cronies and friends of the President, especially considering the Attorney General was directly appointed by president without any mechanisms any form of recommendations and approval brought in by the Constitution of Kenya 2010. For example in the book The Anatomy of Corruption in Kenya, in 9th March 1995 Langata MP Raila Odinga institution of private criminal proceedings against Vice President George Saitoti, Central Bank of Kenya Governor,Eric Kotut, businessman Pattni others for alleged involvement in the Goldenberg scandal, were met issuance of nolle prosequi by the Attorney General after he entered appearance as amicus curiae(friend of the court). The Chief Magistrate stated in the circumstances a nolle prosequi has been entered and this brings an end these proceedings and he further observed that The court cannot enquire the motives and reasons behind entering of nolle prosequi.It cannot only enquire into the reasons and reject them if it finds them wanting if the A-G seeks to terminate proceedings under under section 87(a) of the Criminal procedure code The above two rulings is what makes her a force to reckon with, and other women should follow suit and not sit down and think the provisions in the constitution with make miracles for them.

The writer is Emmanuel Yegon, a law student from Kenyatta Univeristy. Email:e.kiprotich@yahoo.com