Only woman in race to succeed Mutunga has been judge for 25 years

Justice Roselyn Nambuye was the only woman that the Judicial Service Commission (JSC) included in its shortlist of candidates it proposed to interview for the position of Chief Justice.

There were only two women out of the 14 candidates that applied for this position.

On the other hand, 13 of the 14 applicants for the position of Deputy Chief Justice were shortlisted, leaving out only the male applicant.

These numbers have a bearing on the chances that Justice Nambuye has of becoming the next Chief Justice, something we shall return to later.

Justice Nambuye started her career in the public service after her graduation from university in 1976 before she was appointed a district magistrate in 1980.

She was appointed a judge in 1991, the third woman in Kenyan history to be appointed to this position and worked in several parts of the country.

In 2012 she was promoted to the Court of Appeal, following two interviews with the JSC after she had applied for the position of Deputy Chief Justice, for which she was unsuccessful and also the Court of Appeal.

Justice Nambuye has twice been declared unfit to serve as a judge but on both occasions, the declaration was thereafter reversed.

The first time that this happened was when Chief Justice Evan Gicheru appointed what came to be called the Ringera Committee that went around the country identifying judges and magistrates that were engaged in corruption and whose removal it recommended in a report to the Chief Justice.

Justice Nambuye was among the 23 judges and 82 magistrates whose removal was recommended by the committee.

Except five, all the 23 judges then resigned their offices rather than face an investigation by a tribunal that the President was obliged to establish if a judge contested the allegations of corruption.

The proceedings of all the tribunals became protracted as the five judges separately challenged their removal, both within the tribunals and in courts of law.
Justice Nambuye was one of the judges that challenged the decision on her removal — first in the High Court and then in the Court of Appeal.

The appeal was still pending when, in 2008, President Mwai Kibaki signed a Gazette notice removing Justice Nambuye from the list of judges that had been suspended from work pending the decision of a tribunal.

The almost six-year delay since the tribunal against her was appointed had allowed significant changes in the country’s political situation, including having to address the effects of the post-election violence which had replaced judicial reforms as the new national priority.

Secondly, the legal profession never expected Justice Nambuye to be included in the list of corrupt judges.

KANU-era corruption was remarkably open and the judges it involved were well known. Although she had her failings, there was a sense that her inclusion in the list was because she was an outsider in judicial politics, a person that the Ringera Committee could victimise without consequences.

Her inclusion in the list of judges to be removed had much to do with tardiness, rather than corruption, a problem that was to become the reason for her second removal in 2010.

When she appeared before the Judges and Magistrates Vetting Board, Justice Nambuye faced allegations of incompetence, bias, unfairness and dishonest treatment but the board found no merit in these allegations, which it dismissed.

The board observed in its report that “the judge maintains appropriate propriety and that “her honesty, candour and professionalism were evident at the interview.”

What troubled the board was the running theme of delay in delivering her judgments which the board noted, “Undoubtedly caused major distress to many litigants and contributed to a major depletion of confidence in the judiciary.”

While recognizing that systemic reasons played a contributory role to the delay that had affected her judgments, the board however concluded that Justice Nambuye’s poor time and case management was the main reason for the delays.

The board singled a judgment that she had written running to over 300 pages, noting that it reflected her poor time management and concluding that the “repetitive and enduring character of the delays rendered the judge unsuitable to continue serving on the Bench.”

Without an appellate mechanism in the structure of the board, the law governing the board had been amended to provide for a review by the board, of its own decisions.

At the time that the board declared Justice Nambuye unsuitable to serve, it also declared Justice Mohammed Ibrahim, who had a similar history of delayed judgments, unfit to serve.

Perhaps because she had previously been recommended for removal by the Ringera Committee or otherwise, there was much less shock about the decision on her, as compared with the decision to declare Justice Ibrahim unsuitable, which sent shockwaves through the profession.

Eventually, Justice Ibrahim applied for and received an unlikely reprieve from the board, which reversed its own decision as to his unfitness to serve.

Along with Justice Ibrahim’s, the board also announced the reprieve of Justice Nambuye. A section of the legal profession felt that having given a reprieve to Justice Ibrahim, the board was compelled to do the same to Justice Nambuye and that his circumstances had somehow worked to her advantage.

We return to the shortlisting process for the position of Chief Justice and Deputy Chief Justice.

Before the High Court intervened in ordering the JSC to review its shortlisting, it was clear that the Deputy Chief Justice was going to be a woman, as all those shortlisted were women, the JSC having eliminated the only male applicant.

On the other hand, Justice Nambuye found herself the sole female applicant for the position of Chief Justice, after the shortlist.

It looks plausible that the JSC had resolved that the Chief Justice would be a man, since the Deputy was going to be a woman. If that was the case, Justice Nambuye’s chances of becoming Chief Justice would not seem high.

Besides gender politics, while she has undoubted integrity and was also greatly praised by the vetting board both for her philanthropic work and her work in extending women’s rights, the JSC would have to make a decision about how Justice Nambuye’s apparent tardiness would place her if she was given the responsibility of ultimate judicial leadership.