Why Supreme Court judges did not wear their red & black robes

Hearings begin on August 31 and the verdict of the top court is expected on September 5

Chief Justice Martha Koome (right) and her deputy Philomena Mwilu (left) during the pre-trial Conference for the presidential petition at the Supreme Court of Kenya. Image Courtesy of: Zakheem Rajan

The pre-trial conference for the 2022 consolidated presidential election petition took place today, August 30, and aside from the proceedings, a slight change in courtroom dress code aroused the curiosity of social media users.

Instead, Chief Justice Martha Koome and her lady justices colleagues observed a strict all-black dress code while the lord justices donned dark-coloured business suits.

Particularly, many wondered why the seven-judge Supreme Court bench was not decked in their red and black robes as well as the judges' traditional headdress.

Periwigs, as they are commonly referred to, are a highly styled wig worn formerly as a fashionable headdress by both women and men and retained by judges and advocates as part of their professional dress.

The Supreme Court dress code has been a matter of discussion following judiciary reforms instituted by former Chief Justice Willy Mutunga in 2011 and which would be reversed by former Chief Justice David Maraga when he assumed office in 2016.

While Dr Mutunga's Green Robes were seen as his reformist approach to a modern Judiciary devoid of 'colonial era' regalia, former CJ Maraga favoured the Red and Black gowns along with wigs.

During the 2017 presidential election petition pre-trial conference, the then-CJ Maraga instructed: "Kindly note that all counsel appearing before the Court shall be fully robed."

Going against both her predecessors, CJ Koome's bench were neither robed nor did the Court insist on the dress code to be applied for the duration of the 2022 trial.

In what may be indicative of a moderate CJ Koome, the President of the Supreme Court earlier this month relaxed the rules on donning periwigs for law graduates who qualify to be admitted to the bar.

The wigs have been one of the requirements and were deregulated after protests from graduates on the high costs that go into purchasing the wigs. One periwig is estimated to cost Sh35,000.

"Having been notified of the difficulty in securing periwigs due to the high number of petitioners, I hereby waive this requirement for this particular ceremony," stated CJ Koome on August 4 after 774 advocates joined the bar.

The issue of judiciary dress code is largely determined by the serving CJ.

Speaking during the pre-trial conference, the Supreme Court President also explained that the judges would be looking at the nine issues to determine whether the presidential election results would be upheld or nullified and what orders will be issued.

She said that one of the issues to be determined would be whether the technology used by the Independent Electoral and Boundaries Commission (IEBC) met the standards of integrity to guarantee accurate and verified results.

The Supreme Court will also determine whether there was interference in the uploading of Forms 34A from the polling station into IEBC’s server.

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