Justice Warsame: Judge gets clean bill for the Supreme Court bench

The Judicial Service Commission has nominated Court of Appeal Judge Mohamed Warsame to replace Justice Mohammed Ibrahim at the Supreme Court.

The senior judge emerged tops in two-day interviews conducted in Nairobi. Chief Justice Martha Koome said Justice Warsame depicted competence and integrity for the position.

“The commission is fully satisfied that Hon Justice Warsame demonstrated the qualities that the Constitution demands of a Judge of the Supreme Court — professional competence, unimpeachable integrity, fairness, sound judgment, a genuine and demonstrable commitment to the rule of law and public service. The nominee’s depth of legal knowledge and breadth of life experience makes him well suited to contribute meaningfully to the development of Kenya’s jurisprudence at the highest level,” said Koome.

Warsame and Justice Francis Tuiyott had been placed as favourites. During his interview, Justice Warsame suggested that the Supreme Court Judges should be deployed to courts regularly to inspect what is happening. He said it is not every case of corruption that should land a magistrate or judge in trouble. According to him, there should be a radical shift in how the leadership is felt in the lower courts.

“The issue of corruption and integrity affects all of us. The dent in one magistrate or judge is a dent for us. We must have a connection between the judiciary leadership and JSC,” said Justice Warsame.

Asked whether a child born out of a Muslim and Christian marriage or those who are born out of wedlock by Muslim fathers should inherit from them, he said Islamic law provides for fairness. He said there ought to have been an injustice against the children. However, he was of the view that the cases touching on Islamic law ought to have been dealt with by a Kadhi’s court.

“The misunderstanding is that the public has been falsely given a narrative that Islamic Law is itself pluralistic. First Islamic Law, properly understood and interpreted, has principles: fairness and justice. The Supreme Court arrived at the Jurisprudentially correct decision but destroyed the entire architecture of the Islamic Law, yet there was a way out if the Kadhis had been given an opportunity. Islamic Law is based on marriage & blood relatives (consanguinity). The point I am making is, the court should give an opportunity to the Kadhis Court within Article 24(4), do not constitutionalize Islamic Law using a wrong methodology,” argued Warsame, adding that anything that can cause harm to either party is not part of the Islamic religion.

The judge also waded into the controversy over whether the Judiciary denied the People’s Liberation Party (PLP) leader, Martha Karua, her rights by failing to hear the election contest following the lapse of a six-month grace period.

He said the Supreme Court needs to determine when the clock starts and when it should end, and in instances where there are appeals, if this six-month period ought to be shared between the High Court, Court of Appeal and Supreme Court.

“Another issue that needs to be dealt with is that the Karua Petition was brought under Article 22, as a violation of a constitutional right. Then the question is, do such petitions on violations then have timelines? Here is a situation where the petitioner is helpless, and the Court is also helpless,” he said, adding that decisions from the Supreme Court cannot be appealed before the East Africa  Court of Justice (EACJ).

He also argued that there ought to be an inter-court dialogue on the applicability of the case, which outlawed mandatory death sentences, as the lower courts seem not to agree with the Supreme Court, despite the apex court’s verdict being binding.

Warsame said that he is bringing a rich record of integrity and reliability to the top court. “I bring an impeccable record of integrity, which is the hallmark of the leadership of The Judiciary and The Supreme Court. We need a court whose record is impeccable in terms of integrity. My record in terms of integrity is very clear. I have never, in my life as a judge for over 22 years, come into a question where my actions were questioned in terms of my integrity,” he continued.

Asked about coming in as a junior judge in the apex court,  while he had held senior positions, he said that it would be easy to take on responsibilities. “ It will be an easy task for me,” he said, adding that he hopes to be the chief whip of the court. “Mine has always been service to the people,” he added.

 Warsame also said that once he retires from the judiciary, he may consider joining politics. “I said I’d run for Mandera Governor seat when I retire from the Judiciary. I don’t see a problem because maybe I’ll want to be governor of Mandera one day if my people call me but that has not and will not affect my responsibilities as a judge. I am the most impartial judge with an impeccable character,” said Warsame.

He was also questioned about judicial temperament. Justice Njoki Ndung’u asked about an interview of Court of Appeal Judge Nduma Nderi when he was a commissioner at the Judicial Service Commission (JSC). Justice Njoki also pressed him on another interview with Justice Jackton Ojwang in 2016. According to her, the comments were heated, which raised questions about temperament.

Warsame said he does not know about the issues being raised. “Judge, you had an interest in the matter,” he replied, adding that if he may have offended anyone, he apologised.

Earlier, Court of Appeal Judge Francis Tuiyott suggested that the country should consider constitutional reforms or amendments to end the long-standing controversy over the two-thirds gender rule.

While commenting on a question on the implementation of the rule, as directed by the Supreme Court, the Judge said that there ought to be an honest discussion, factoring in the difficulties of the implementation, including whether to re-look at the constitution to resolve the issue.

Justice Tuiyott said although talks in different sectors on the implementation of the rule may be genuine, while others are not, there is a need to revisit the problematic implementation issue, especially in political positions.

He told the JSC that he brings on board a robust 36 years in the profession, with the Commercial High Court being the ‘boiling pot’ of his career.

“The decision that the two-thirds gender needs to be implemented, I would think that time has revealed that the majority were right, given the difficulty in implementing the two-thirds gender rule in elective positions,” he said.