Judiciary fails gender parity test

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What you need to know:

  • Latest gender audit  by  the National Gender and Equality Commission, the International Association of Women Judges -Kenya Chapter and the International Development Law Organisation indicates the Judiciary is yet to achieve gender parity.
  • Judiciary Training Institute does not often and consistently provide for training on gender equality and how to apply it in service delivery and the workplace.
  • Employees reported bullying and sexual harassment in significant numbers but complaints were rarely filed or successfully addressed.
  • No woman has ever served as Chief Justice, President of the Supreme Court, or President of the Court of Appeal.

The latest gender audit in the Judiciary has brought the institution into sharp focus over gender equality.

The audit brings to the fore the irony of an institution the Law Society of Kenya (LSK) is banking on to achieve the two-thirds gender rule that itself does not conform to gender equality requirements.

LSK recently kicked-off a fresh process that seeks to compel President Uhuru Kenyatta to dissolve Parliament for failing to initiate implementation of constitutional provisions that would ensure gender balance in both levels of government.

The LSK in a petition asked Chief Justice David Maraga to write to President Kenyatta to advise him on dissolving Parliament, on grounds that no laws have been crafted to enable implementation of Section 27 of the Constitution.

CORRIDORS OF JUSTICE

Section 27 of the Constitution requires both levels of government to ensure that neither gender has more than two-thirds of public officers, whether elected or appointed.

The gender audit at the Judiciary released early last week reveals the glaring gender inequality at the corridors of justice.

The audit, which was undertaken by the National Gender and Equality Commission (NGEC) in collaboration with the International Association of Women Judges (IAWJ)-Kenya Chapter with support from the International Development Law Organisation indicates the Judiciary is yet to achieve gender parity.

The disparity is wider at the leadership level but narrows at the lower cadre positions, the report reveals.

In the Court of Appeal, female judges are half less than the male counterparts. There are 14 males against seven female.

Out of the 126 judges serving in the High Courts, 53 are women, further, only 19 out of the 46 chief magistrates, are women.

PRINCIPAL JUDGES

There is, however, a lower gender disparity in other jurisdictions such as registrars (three male, four female); directors (eight male, three female) and principal judges (three male, two women).

The Supreme Court has five male judges and two female, while at the Judicial Service Commission, four of the 11 members are women.

At the magistracy level, women are seemingly more. The number of female resident magistrates is double the number of male colleagues.

The report shows that there are 97 female resident magistrates against 47 men. For senior resident magistrates, the ratio of female to male is equal at 76.

At the principal magistrate category, women are 21 and men, 42. At the senior principal magistrate level, women are 21 while men are 33.

Kadhis courts have zero female judges or magistrates.

COMMUNITY ROLE

Nearly half (45.7 per cent) of Judiciary employees interviewed, noted that Judiciary leaders are accorded respect on the basis of their performance and not gender.

Nevertheless, patriarchal traditions followed by some communities have stood on the way of smooth resourcing of courts across the country.

The report highlights that community members have, in some cases, rejected female magistrates posted to courts in the counties. It recommends that “women are supported to ensure that they do not have to endure a hostile work environment.”

It also calls for continuous sensitisation of communities to establish a conducive working environment for the female judicial officers to serve well. 

Other shortfalls the audit unearthed is that the Judiciary Training Institute did not often and consistently provide for training on gender equality and how to apply it in service delivery and the workplace.

“The Judiciary also lacks a formal plan or a framework for achieving gender parity within specific timeframes in its senior leadership positions. It also does not have a policy addressing the use of affirmative action so that it could be applied consistently when warranted,” the audit says in part.

SEXUAL HARASSMENT

According to the audit, judiciary employees reported bullying and sexual harassment in significant numbers but complaints were rarely filed or successfully addressed.

Gender-based accommodation for litigants the audit found was largely employee-initiated and not consistently practiced across all courts while the Judiciary did not collate, analyse and prepare reports with gender-disaggregated data on who was using the courts and the type of services they were using.

And although the Judiciary has gradually and progressively become receptive to the principles of gender equality and non-discrimination, a lot needs to be done, the audit says.

For example, the Judiciary's strategic plan ending 2019 did not impose any obligations on the directorates and departments to allocate resources to promote gender equality and inclusion interventions.

SENIOR LEADERSHIP

To achieve gender equality in the Judiciary, NGEC has recommended that the legal body adopts a comprehensive gender policy, takes measures to increase the number of women in senior leadership roles, collects and analyses gender-disaggregated data across all fields beyond the total workforce and develops and delivers a gender-sensitive and inclusive training curriculum for all employees.

“The Judiciary is also required to put safeguards in place to ensure fairness in court-annexed mediation, use of simple education materials on equality and non-discrimination to educate the public and develops the Judiciary’s quality legal research ability,” NGEC recommendations read in part.

The audit facilitated an introspective institutional audit of the Judiciary on the principles of gender and inclusion as key constitutional imperatives.

It also sought to analyse the gender sensitivity and responsiveness of the Judiciary as a whole in its internal operations and delivery on its external mandate. 

WOMEN JUDGES

Last year, the International Development Law Organisation (IDLO) in partnership with the National Gender and Equality Commission and the International Association of Women Judges – Kenya, released a report titled Women's Professional Participation in Kenya's Justice Sector: Barriers and Pathways.

The report examined the different actors that constitute the justice sector – the police, academia, law societies, lawyers, judges and magistrates and the barriers that block women’s equitable and meaningful participation in them.

It noted that by 2018, there was a remarkable increase in numbers of women judges and magistrates who stood at 48 per cent of the judiciary.

However, the progress notwithstanding, IDLO’s report illustrates that these gains do not necessarily speak to meaningful equality.  

For example, no woman has ever served as Chief Justice, President of the Supreme Court, or President of the Court of Appeal. The highest position held in the judiciary is that of the deputy chief justice that is currently being held by Justice Philomena Mwilu.

KADHI'S COURT

Previously the position has been held by Nancy Barasa and Kalpana Rawal.

What’s more, there is not a single woman in the Kadhis’ Courts - religious courts adjudicated by Kadhi magistrates - that apply a hybrid legal approach with Sharia Law.

“The Judiciary has tried to increase women’s representation and participation at recruitment level, but there is a need to improve their numbers at the high levels of the institution. Let us give women a chance, they can also be Chief Justice and Attorney General or any position of leadership.”

IDLO’s Gender Specialist in Kenya, Shiro Mogeni, noted the report was released at a time when the representation and participation of women in the justice sector is marred by limited substantive participation and low representation.

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