Factors at play as BBI case goes to appeal

On May 21, 2021, as Chief Justice Martha Koome and Supreme Court judge William Ouko took their oaths of office, Justice Roselyne Nambuye retired from the Court of Appeal. She had reached 70 years.

Retirement and promotions have cut the Court of Appeal’s numbers – already diminished by natural attrition from the maximum 30 – to just 12.

The Court of Appeal will be in the crosshairs as the president, the Attorney General and the elections management body seek to undo the recent stinging rebuke a five-judge High Court bench gave them for their failure to uphold the Constitution and follow the law in pursuing constitutional amendments under the Building Bridges Initiative.

From the court’s total of 12, five or seven judges will be chosen to hear the BBI appeal.

Political leaders chastised by the ringing rebuke from the High Court will be hoping for a huge relief – perhaps a majority in the Court of Appeal. Such respite depends on several factors, starting with who will be on the appellate bench.

Administratively, the President of the Court of Appeal – rather than the Chief Justice as is the case in the High Court – empanels appellate benches.

Justice Ouko’s appointment to the Supreme Court opened a vacancy in the Court of Appeal presidency which has been filled following the election of Justice Daniel Musinga to the position today.

The Chief Justice can appoint one of the presiding judges in Nairobi to act for no more than 21 days. Before Justice Musinga’s election to the court’s presidency, Justice Wanjiru Karanja, the ranking judge in the court, had been acting as president since the interviews for Chief Justice began.

Once a vacancy occurs in the office of President of the Court of Appeal, the Chief Registrar of the Judiciary is required by law to convene a meeting of all judges of the court to elect their president within 14 days. At the last election for president in February 2018, Justice Karanja polled four votes against Justice Ouko.

Since the bench sitting to review the judgment of a five-judge constitutional bench will be an extraordinary one, it will be defined as much by the judges who are excluded as those who are on it.

Justice Mohammed Warsame, who sits in the Judicial Service Commission as the Court of Appeal representative, and Justice Kathurima M’Inoti, who heads the Judiciary Training Institute, and was recently named to the appellate division of the East African Court of Justice, could be easy exclusions because of their busy schedules – but they have previously served on benches where their industry, intellect and knowledge was required.

The appellate bench would need to factor in considerations such as experience, subject competence, gender and regional representation to balance against being overwhelmed by political wrath and the intimidation of public disdain. The Court of Appeal relies on collegiality, and its decisions are by the majority. This means that individuality and independence can sometimes only be discerned from dissent, where personal grit and talent shine.

Justices Makhandia, Murgor, Musinga, Kiage, Warsame, Sichale and Kairu have all written at least one dissenting opinion from the main judgment in Court of Appeal.

Still, the most influential judges have tended to be those who are masterful artists of procedural technicalities, versed in the dark art of cutting down judgments.

Mischief in the court is often stymied only by ambition and hopes of moving up the ranks. The Court of Appeal has been a hotbed of career ambition in the judiciary. It has produced former Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, and now Chief Justice Koome as well as Supreme Court judge Ouko.

Judges decide cases while also considering how their decisions could affect their career prospects within the judiciary. It is instructive that Justices Karanja, Hannah Okwengu, Fatuma Sichale and Agnes Murgor all interviewed for the position of Deputy Chief Justice in 2016.

Yet, when the first Supreme Court vacancy opens up in 2026 with the retirement of Justice Mohamed Ibrahim, Justice Okwengu will have retired, while another two appellate judges will have less than two years to their retirement. Another five judges have between five and 10 years before their retirement.

Judges confronted with severely diminished opportunities for career growth within the judiciary could decide major cases with a view to securing their legacy after retirement, or disappearing from the legal landscape.

Without the incentive of career progression, the Court of Appeal could easily become the graveyard of progressive jurisprudence, striking down bold decisions from the High Court.

The court’s inability to embrace the emergence of indigenous jurisprudence on questions of integrity, public participation and social-economic jurisprudence has been noted on occasion since the promulgation of the Constitution in 2010.

Every so often, the Supreme Court has had to step in to defend the High Court, such as was the case when a finding of illegality in evicting 3,000 people from an informal settlement was upheld in the Mitu-Bell decision on January 11, 2021.