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The appointment of Justice Mohamed Warsame to the Supreme Court continues a trend of integrating the reality of ethnic, regional and other diversities with competence, sobriety and capacity.
Kenyans who have matured under the 2010 Constitution will not be aware how far we have come as a Nation.
In the pre-2010 days, appointments to the senior Judiciary, required approval by the Executive.
It would have been unheard of for a judge who has challenged the Executive, as Justice Warsame did when President Kenyatta refused to appoint him to the Judicial Service Commission, to be promoted to Supreme Court judge.
This is good for Kenya’s judicial development. There is no doubt that Justice Warsame is one of the Judiciary’s good minds. In his term as a High Court and later Court of Appeal judge he has been known for delivering pragmatic but progressive decisions.
These include cases dealing with due process, rule of law and resistance to Executive impunity, as seen in the Kana case, where he accused the Kibaki Administration of failing to recognise the progressive character of the Bill of Rights under the 2010 Constitution.
His judgement on fair trial, particularly in the Koriow Nur case, remains an important precedent on entrapment and illegally obtained evidence.
There are varied opinions on Justice Warsame in regard to the vetting case where he was part of a bench that issued conseravatory orders when LSK was opposing the courts playing any role in the vetting of judges, a matter expressly provided for in the 2010 Constitution.
In their final judgement, Justice Warsame and his peers navigated the issues with discernment for such a contentious matter in which the judges were directly impacted.
In the Court of Appeal, he will be remembered for being in the bench that decided on the contentious security laws litigation, which dealt with the constitutionality of human rights regressing laws introduced by the Executive.
In this case, the court also defined the limits of legislative power. On the whole, Justice Warsame has left his mark on Kenya’s jurisprudential mosaic.
His responses to the Judicial Service Commission left one with the sense that he will not be a recklessly revolutionary judge but will follow the path generally trodden by the court, which tends towards progressive conservatism.
Unspoken but generally recognised is the reality that with the demise of Justice Mohammed Ibrahim, the Supreme Court was without a single Muslim judge, making Justice Warsame the most obvious choice for a court that must navigate the delicate issue of Islamic law and the role of the Kadhi courts.
One surprising candidate during the interviews was Court of Appeal Justice Katwa Kigen.
Though it was never doubted that he has a good head on his shoulders, his answers to the interviewers indicated an unusually liberal approach to constitutional and legal interpretation taking positions that differed from the usual jurisprudential path. Alternative approaches can only enrich the court.
He is however still relatively young and may need to spend some time in the Court of Appeal before he is truly ready for the Supreme Court, if he remains interested. As the court seeks to fill some upcoming vacancies, one concern remains.
Other than Justices Njoki Ndungu and Smokin Wanjala, who are remnants of the inaugural court, the current cohort of Justices is all from the bench.
If one compares this team with the first set of judges, four out of seven judges had emanated from outside the Judiciary including Civil Society, Parliament and Academia.
The current trend causes concern about the cross-pollination deficit that the court will inevitably suffer from. The JSC needs to take this into account in the next appointments.
That said, kudos to Chief Justice Martha Koome for her steady hand at both the JSC, the Judiciary and the Supreme Court.
The Court remains one of the most trusted institutions in Kenya and the citizens’ hope for advancement of constitutionalism especially as the Executive and Parliament get more entangled and unquestioningly supportive of each other.
For instance, if it was in Kenya, Uganda’s oppresive Protection of Sovereignity Bill would be trashed by our courts in the morning. May this justice continue to reign. To Justice Warsame, we wish you well in your new season.
-The writer is an advocate of the High Court of Kenya
