The involvement of Chief Justice Martha Koome in the Technical Working Committee that is tasked and mandated with ensuring election preparedness in regard to next year’s general election is illegal, the United Democratic Alliance (UDA) party has said.
In a letter addressed to Koome, who doubles as the chair of the Judicial Service Commission (JSC), UDA secretary-general Veronica Maina said that the involvement of Koome in the Technical Working Committee is likely to interfere with free and fair elections during the 2022 general election.
“Whereas we are cognizant that the Technical Working Committee draws its membership from various government agencies and it is indeed a Multi-Sectoral Forum, we opine that your involvement in the consultative meetings of the Technical Working Committee is a clear violation of the Constitution, the Judicial Service Act, 2011. the Leadership and Integrity Act, 2012, the Public Officer Ethics Act, 2003. the Bangalore Principles and the Code of Conduct for Judicial Officers,” said Ms Maina.
By involvement in the committee, UDA said it amounts to conflict of interest since the Chief Justice is constitutionally required to act as an arbiter in election petitions.
“By you participating in the workings of the Technical Working Committee, this is also tantamount to participating in elections matters and in this case you are wearing the hat of those that are required to ensure that all is set for elections, in this case, being the IEBC and thereafter you shall be expected to wear the hat of a judge and deliberate and determine any ensuing election disputes. The interchange of the two hats cannot constitutionally be tenable,” added Maina.
According to Maina, the courts will not be impartial in dispute resolution and dispensation of justice should disputes arise in determining matters that the CJ participated in putting in place.
“It is also worth noting that the question of impartiality of the Chief Justice shall also arise if you continue participating in the workings of the Technical Working Committee contrary to Article 73 of the Constitution which provides that a State Officer shall be guided by the principle of objectivity and impartiality in decision making, a principle which is further espoused in the Leadership and Integrity Act, 2012 and the Public Officer Ethics Act, 2003,” she added.
UDA says Koome’s involvement in the committee negates Section 5 of the Judicial Service Act No.1 of 2011 which sets out the functions of the Chief Justice, and does not include participating in planning for the general elections.
The Party associated with Deputy President William Ruto also accuses the CJ of breaking the Bangalore principles which require “independence and impartiality” in the conduct of judicial officers.
Bangalore principles are international standards for judicial conduct, which are further codified in the Code of Conduct for Judges in Kenya to provide values and standards of conduct for judicial officers.
UDA suggests that Koome should follow the example of her predecessors former Chief Justices David Maraga and Willy Mutunga who never participated in planning for elections through Technical Working Committees.
“From the foregoing, it is our humble submission that you have no role whatsoever in election planning and your participation is similar to allowing a judge to prepare submissions for a client in readiness for a trial only for the same judge to sit, hear and determine the case! As you are further aware, settlement of electoral disputes ensuing from an election is part of the process of free and fair elections,” added Ms Maina.
UDA now wants the CJ to resign from her role and involvement in the committee to guarantee a free and fair election in 2022.