Karua proposes foreign Supreme Court judges

Three out of the seven individuals appointed to the Supreme Court should be non-Kenyans, Gichugu MP Martha Karua has proposed.

Ms Karua, the former Justice minister, who was addressing the national convention on the implementation of the new Constitution told participants that such an arrangement would instil confidence in the Superior court of the land.

Part 2 of Chapter 10 in the new Constitution establishes the Supreme Court, which shall consist of the chief justice as its president, deputy chief justice and five other judges.

The court will have exclusive original jurisdiction to settle disputes relating to presidential elections. The Supreme Court also retains appellate jurisdiction to hear and determine appeals from Court of Appeal or any other court or tribunal.

According to Ms Karua, existing ethnic divisions in the country may not allow the court to work independently if only Kenyans occupy the seven places available on the bench.

“The composition should be to have four Kenyans and the other three to come from Commonwealth during the transitional period,” the Gichugu MP told the civil society groups Tuesday at Ufungamano House.

According to Ms Karua, the presence of the three foreign judges would instil a sense of neutrality even if the major political parties engage in horse-trading in the appointment of judges to the Supreme Court.

“I believe that if the Waki Commission was made up of only Kenyans we may have had many queries as to which political side or tribe he belongs to but his report was acceptable because other members were non-Kenyans," she said.

Similarly, the Kriegler Commission was successful on its assignment because of its composition that consisted of foreigners and Kenyans, she added.

“Kriegler Commission was able to point out that both sides took part in rigging the 2007 election. Would we have got a similar report if the commission was made up of all Kenyans?” posed Ms Karua.

The Waki Commission, officially the Commission of Inquiry on Post Election Violence (CIPEV) was composed of Justice Philip Waki as chairman, Gavin Alistair McFadyen, a former police Assistant Commissioner in New Zealand and Pascal Kambale, a lawyer from the Democratic Republic of the Congo.

The constitution in Article 166 (2 a&b) allows a person from the Commonwealth to serve in the superior courts including Supreme Court, Court of Appeal and High Courts as long as the person meets the requisite academic, work experience and integrity requirements.