The Gender principle passed in the 2010 Constitution was an unintended consequence of underrepresentation of the Women gender consistently in all arms of government since independence. Article 27(8) requires the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. Judiciary is one of the arms of the government is obligated to comply with the two-thirds gender principle. The Judicial Service Commission (JSC) is required under Article 172(2)b of the Constitution of Kenya to promote gender equality. Section 3(j) of the Judicial Service Act requires the Judicial Service Commission and Judiciary to promote gender equity. Section 10(2) of the Third Schedule of the Judicial Service Act requires the Judicial Service Commission to take into account gender consideration in the recommendations of Candidates for Appointments .
Compared to other arms of government, the Judiciary has made significant strides in the implementation of two-thirds gender principle with the aspiration to make equal (50:50) . The JSC Service Charter Part II takes cognizance of the Constitutional and Legal obligations of the Commission in implementing the two-thirds gender principle . Another key policy document Sustaining Judiciary Transformation (SJT) 2017-2021 doesn’t mention strategies to be used in obtaining gender parity across all court levels . Judiciary has made more progress in the advancement of gender equity ever since the enactment of the new Constitution in 2010. They are more female judges at higher courts post-2010 .
From literature, evidence exists that women presence on the court is not an act of mere formality but brings forth benefits to society. Massie, Johnson, and Gubala (2002) find that the influence of female judicial officers to be more pronounced on issues that are of the utmost concern to women and the community in the United States Courts of Appeals . Johnson, Songer, and Jilani (2011) find that women Judicial officers vote more liberally on civil rights, equality, and private economic cases, and more conservatively on criminal cases in the Appeal Courts of Canada .
Another Jurist, Judge Vanessa Ruiz argues that women presence in the Judiciary is not only important for legitimacy, but women contribute to the quality of decision making and quality of justice itself by bringing women lived experiences to their judicial actions . Women lived experiences include complex family relationships, obligations, social and cultural impacts.
Kenya has 706 judicial officers equivalent to 1 judicial officer for every 69,000 Kenyans. The breakdown of the Court is shown in the chart below.
Chart: Number of Judicial Officers by Court
Source: Statistical Abstract 2020, SOJAR 2018/19
Magistrates and High Court judges comprise of 71% and 12% of the Court respectively. The judicial officers sitting on Supreme Court, Court of Appeal, Kadhis Court, Environment and Land Court, and Employment and Labour Relations Court comprise the rest 17% of all court.
Assessment of the Judiciary on the compliance of the two-thirds gender principle shows that the Court is largely compliant. The table below shows the breakdown of the gender composition by each level of the court.
Table 1: Gender Composition of Judicial Officers by Court
Source: Statistical Abstract 2020
Observations
Conclusions
As a whole, Kenya’s Judiciary is largely compliant with the two-thirds gender principle as outlined in Article 27(8) of the Constitution of Kenya. However, specific courts which include the Supreme Court and the Kadhis that remain not compliant with gender principle. The gender parity is at lower courts. Gender parity at higher courts and specialized courts is skewed more towards the male gender. The Judicial Service Commission should be accountable for the failure to adhere to the two-thirds gender principle as an outline on Article 27(8) of the Constitution of Kenya. The Judicial Service Commission in its own volition should bring forward a plan towards a gender diverse court especially at the highest court levels where gender parity is skewed towards one gender. The Judicial Service Commission performance must be assessed on the basis of attainment of two-thirds gender principle in Judiciary.
Parliament should propose sanctions for lack of compliance across all three arms of the state and any other firm that relies on public coffers for direct budgetary support or debt guarantees. Parliament’s inaction on ensuring Article 27(8) could be largely explained by its poor performance on the two-thirds gender principle that even the Chief Justice advised the President to dissolve parliament in line with article 261(7) of the Constitution of Kenya, 2010 . Parliament immediately went Court and obtained orders barring dissolution of Parliament until the issues raised in the Petition are heard and determined.
End Notes
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We recommended (“And then, Floods”) that the Central Bank of Kenya policy rate should be lowered by 300 basis points, from 13 to 10 percent, from August 6. Instead, a reduction of just 25 basis points, from 13 to 12¾, was made on that date. Someone is wrong. Who? In explaining the 25bp decision, it […]
There has been a misconception that when the Finance Bill 2024 was formally withdrawn, all government operations would stop because revenues would not be raised. To understand this misconception, we need to understand what a finance bill is, what revenue-raising measures are, and how that is related to the tax code. A Finance bill is […]
1. Introduction Fiscal decentralisation is a core part of Kenya’s Constitutional order. Fiscal decentralisation is allocating revenue and expenditure responsibilities to lower levels of government. Kenya’s identity as a sovereign republic, as stated in Article 4 of its Constitution, is deeply intertwined with the national value of devolution, emphasised in Article 10. This unique relationship […]
Introduction The Constitutional Theory of Public Goods argues that people decide which goods are public goods at a constitutional level. This decision is based on how much their enjoyment of the good depends on others also enjoying it (Marmolo 1999).i The theory suggests that the government should provide public goods where there is significant demand […]
Post date: Mon, Feb 8, 2021 |
Category: General |
By: Leo Kipkogei Kemboi, |
The Gender principle passed in the 2010 Constitution was an unintended consequence of underrepresentation of the Women gender consistently in all arms of government since independence. Article 27(8) requires the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. Judiciary is one of the arms of the government is obligated to comply with the two-thirds gender principle. The Judicial Service Commission (JSC) is required under Article 172(2)b of the Constitution of Kenya to promote gender equality. Section 3(j) of the Judicial Service Act requires the Judicial Service Commission and Judiciary to promote gender equity. Section 10(2) of the Third Schedule of the Judicial Service Act requires the Judicial Service Commission to take into account gender consideration in the recommendations of Candidates for Appointments .
Compared to other arms of government, the Judiciary has made significant strides in the implementation of two-thirds gender principle with the aspiration to make equal (50:50) . The JSC Service Charter Part II takes cognizance of the Constitutional and Legal obligations of the Commission in implementing the two-thirds gender principle . Another key policy document Sustaining Judiciary Transformation (SJT) 2017-2021 doesn’t mention strategies to be used in obtaining gender parity across all court levels . Judiciary has made more progress in the advancement of gender equity ever since the enactment of the new Constitution in 2010. They are more female judges at higher courts post-2010 .
From literature, evidence exists that women presence on the court is not an act of mere formality but brings forth benefits to society. Massie, Johnson, and Gubala (2002) find that the influence of female judicial officers to be more pronounced on issues that are of the utmost concern to women and the community in the United States Courts of Appeals . Johnson, Songer, and Jilani (2011) find that women Judicial officers vote more liberally on civil rights, equality, and private economic cases, and more conservatively on criminal cases in the Appeal Courts of Canada .
Another Jurist, Judge Vanessa Ruiz argues that women presence in the Judiciary is not only important for legitimacy, but women contribute to the quality of decision making and quality of justice itself by bringing women lived experiences to their judicial actions . Women lived experiences include complex family relationships, obligations, social and cultural impacts.
Kenya has 706 judicial officers equivalent to 1 judicial officer for every 69,000 Kenyans. The breakdown of the Court is shown in the chart below.
Chart: Number of Judicial Officers by Court
Source: Statistical Abstract 2020, SOJAR 2018/19
Magistrates and High Court judges comprise of 71% and 12% of the Court respectively. The judicial officers sitting on Supreme Court, Court of Appeal, Kadhis Court, Environment and Land Court, and Employment and Labour Relations Court comprise the rest 17% of all court.
Assessment of the Judiciary on the compliance of the two-thirds gender principle shows that the Court is largely compliant. The table below shows the breakdown of the gender composition by each level of the court.
Table 1: Gender Composition of Judicial Officers by Court
Source: Statistical Abstract 2020
Observations
Conclusions
As a whole, Kenya’s Judiciary is largely compliant with the two-thirds gender principle as outlined in Article 27(8) of the Constitution of Kenya. However, specific courts which include the Supreme Court and the Kadhis that remain not compliant with gender principle. The gender parity is at lower courts. Gender parity at higher courts and specialized courts is skewed more towards the male gender. The Judicial Service Commission should be accountable for the failure to adhere to the two-thirds gender principle as an outline on Article 27(8) of the Constitution of Kenya. The Judicial Service Commission in its own volition should bring forward a plan towards a gender diverse court especially at the highest court levels where gender parity is skewed towards one gender. The Judicial Service Commission performance must be assessed on the basis of attainment of two-thirds gender principle in Judiciary.
Parliament should propose sanctions for lack of compliance across all three arms of the state and any other firm that relies on public coffers for direct budgetary support or debt guarantees. Parliament’s inaction on ensuring Article 27(8) could be largely explained by its poor performance on the two-thirds gender principle that even the Chief Justice advised the President to dissolve parliament in line with article 261(7) of the Constitution of Kenya, 2010 . Parliament immediately went Court and obtained orders barring dissolution of Parliament until the issues raised in the Petition are heard and determined.
End Notes
The earliest proposition of fiscal consolidation can be traced back to the Keynesian theory which argues that fiscal austerity measures reduce growth and increases unemployment through aggregate demand effects. According to this theory, government undertaking contractionary fiscal policies of either reducing government spending or increasing tax rates, will eventually suffer a reduction in aggregate demand […]
We recommended (“And then, Floods”) that the Central Bank of Kenya policy rate should be lowered by 300 basis points, from 13 to 10 percent, from August 6. Instead, a reduction of just 25 basis points, from 13 to 12¾, was made on that date. Someone is wrong. Who? In explaining the 25bp decision, it […]
There has been a misconception that when the Finance Bill 2024 was formally withdrawn, all government operations would stop because revenues would not be raised. To understand this misconception, we need to understand what a finance bill is, what revenue-raising measures are, and how that is related to the tax code. A Finance bill is […]
1. Introduction Fiscal decentralisation is a core part of Kenya’s Constitutional order. Fiscal decentralisation is allocating revenue and expenditure responsibilities to lower levels of government. Kenya’s identity as a sovereign republic, as stated in Article 4 of its Constitution, is deeply intertwined with the national value of devolution, emphasised in Article 10. This unique relationship […]
Introduction The Constitutional Theory of Public Goods argues that people decide which goods are public goods at a constitutional level. This decision is based on how much their enjoyment of the good depends on others also enjoying it (Marmolo 1999).i The theory suggests that the government should provide public goods where there is significant demand […]