Khelef Khalifa has petitioned the Judicial Service Commission (JSC) not to recommend Justice Martha Koome as the next Chief Justice (CJ).
The President appoints a CJ per JSC’s recommendations and approval by the National Assembly.
Koome also wants to be a judge of the Supreme Court. Khalifa opposes this application, too.
Khalifa is a human rights defender and the Muslims for Human Rights (MUHURI) Board chairman. Koome is serving as the Court of Appeal judge.
“Koome participated in a judicial conspiracy that defeated electoral justice in 2017,” Khalifa said in the petition, “and this undermined the integrity of the judiciary and its authorities.”
JSC received this petition on February 26.
Koome’s interview for the position of CJ is on April 14. She’s among 13 applicants who want to succeed former CJ, David Maraga.
Koome overturns Odunga’s judgment
On October 16, 2017, Khalifa challenged the appointment of 290 constituency returning officers and their deputies. Judge George Odunga ruled in Khalifa’s favour, declaring the appointment by IEBC illegal.
Odunga’s judgment was on October 25, 2017, a day to the repeat presidential election, which the Opposition boycotted.
“The verdict by Odunga would ordinarily have had the effect of halting the repeat presidential poll—due to violation of the law—which was hours away. Or it could have rendered holding the repeat election meaningless, on account of illegality ab initio,” Khalifa said.
Interior CS Fred Matiang’i had declared October 25 a public holiday. Maraga, however, allowed judges from the Constitutional and Judicial Review Division, including Odunga, to deliver their pending judgements relating to the repeat presidential ballot.
But a few hours after Odunga’s judgment, Khalifa said, then Court of Appeal President, now the Attorney General Paul Kihara, formed a three-judge bench that allegedly overturned Odunga’s decision. Koome, Fatuma Sichale and Erastus Githinji allegedly sat on that bench.
By the time Kihara formed the bench, Khalifa said, Koome and the other two judges were not stationed in Nairobi, where the appeal was allegedly heard.
“The trio constituted part of a circuit court outside Nairobi, and they would not ordinarily hear Nairobi matters. Koome was based in Malindi, Sichale in Nyeri and Githinji in Kisumu,” Khalifa said, adding there is no record that the appeal was certified as urgent.
Khalifa said there are no proceedings to prove Koome heard the purported appeal, and this further suggests “ulterior motives, illegality and bad faith”.
“Even if Koome and other judges sat and heard the appeal, they acted against the laid down procedures,” Khalifa said.
“Given how consequential the orders they issued were, it shows bad faith, partiality or utter incompetence to do so based on the urging of one party, without even having made an attempt to reach out to the opposition party. My counsel of record, Willis Otieno, was not informed about the purported appeal.”
Khalifa said this incident proves that Koome lacks a high moral character, integrity, and impartiality, as required of a person holding CJ’s office or judge of the Supreme Court.
“Therefore, I am petitioning the JSC to determine that justice Koome is not a person who is competent and fit to be the CJ or the judge of the Supreme Court of Kenya,” the petition said.