No more than 4 judges of one gender in Supreme Court: Court of Appeal
Six of the Supreme Court judges during the delivery of a judgment in 2017. A lawyer sued the JSC over lack of gender balance as it had five men and two women. FILE | NATION
There can be no more than four judges of one gender in the Supreme Court, the appellate court has declared.
It has also directed the Judicial Service Commission to ensure compliance with the two-thirds gender rule when recruiting.
Justices Agnes Murgor, Jamila Mohamed and Roselyne Nambuye held that because the lower cadres of the judicial service are staffed with more members of one gender does not mean that the Judiciary is constitutionally compliant.
The court declined an argument by JSC that gender was not a primary consideration in the appointments. It held that it was wrong for JSC to disregard the gender principle in 2016 when recruiting Chief Justice (now retired) David Maraga, Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola to the Supreme Court.
As a result of the recruitment, the apex court had five men and two women, which led to the filing of a constitutional petition by Dr Adrian Kamotho Njenga, a lawyer, challenging the legality of the top court’s composition.
The High Court had dismissed his petition in a judgment delivered on May 12, 2017, prompting his escalation of the dispute to the Court of Appeal.
In its judgment, the appellate court said that although there was no evidence to show that JSC had set out to exclude women, the commission had a duty to ensure that the two-thirds gender principle was adhered to.
The court declined JSC’s stand that while the gender consideration was important, it ought to only come in after merit.
“In our view, it cannot be said that merit should be a primary consideration and that gender becomes a secondary consideration,” said the judges.
“While it is true that there is no evidence that JSC acted in a discriminatory manner by deliberately excluding women in the recruitment process, it cannot be gainsaid that, if the previously followed process continues without change, there is no doubt that unconstitutional gender quotas will continue to prevail,” said the bench.
Discriminatory practices
It added: “The effect will be to perpetuate discriminatory practices that are an affront to Article 27 of the Constitution. The provision clearly calls for a substantive approach to equality, one which recognises the historical context in the recruitment of women to high office, and requires that affirmative action be implemented to address the existing inequalities.”
The court held that in 2016, JSC was required to take progressive steps to ensure that the two-thirds gender principle was attained in accordance with Supreme Court Advisory Opinion No. 2 of 2012.
According to the appellate court, 12 years after promulgation of the constitution there is a responsibility on the part of JSC to ensure that in the exercise of its mandate of recruitment to all courts, the two-thirds gender principle is complied with.
The appellate court also declined JSC’s argument that the judicial service as a whole was constitutionally compliant with the two-thirds gender rule and therefore it did not matter that the Supreme Court did not have the requisite number of women.
