The Constitution of Kenya, 2010, under Article 27, requires that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. The Two-thirds Gender principle is founded on the right to equality and freedom from discrimination, entrenched in the Constitution. The spirit of this principle is that “wwomen and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres”. Following the declaration of vacancy for the position of Chief Justice of the Republic of Kenya in January 2021, and retirement of Justice Jackton Ojwang in February 2020, there is an ongoing recruitment for Chief Justice and Judge of the Supreme Court .
All Judges in Kenya are recruited by the Judicial Service Commission (JSC) through an open and competitive process and recommended to the President for appointment per Article 172 of the Constitution and the Judicial Service Act. The JSC is an independent commission established under Article 171 of the Constitution. The Constitution details the Commission’s composition to include the Chief Justice as Chairperson, one Supreme Court Judge, one Court of Appeal Judge, one High Court Judge, one Magistrate, Attorney General, two advocates representing the statutory body for lawyers, one person nominated by Public Service Commission and one woman and one man to represent the public, appointed by the President with the approval of the National Assembly .
The Supreme Court is established under Article 163 of the Constitution and is the apex court in the Republic of Kenya. It is considered the final arbiter and interpreter of the Constitution . The Court is composed of the Chief Justice as the President of the Court, Deputy Chief Justice as the Vice President and five other judges. It has exclusive original jurisdiction to hear and determine disputes relating to elections to the Office of the President. The Court also has appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by law. The Supreme Court may give an advisory opinion at the request of the national government, any State organ or any county government. Its decisions are final and all courts, other than the Supreme Court, are bound by its decisions.
In this piece, we argue that the Judicial Service Commission, the Supreme Court and by extension the whole Judiciary, acting within the limits of the Constitution, ought to interpret their mandate in a manner that advances rights, as outlined under Article 259. Article 259(1) requires the constitution be construed in a manner that promotes purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and contributes to good governance. Based on analysis of the laws and facts presented, we settle on two reasons why the next Chief Justice or Judge of the Supreme Court should be of the female gender.
The requirement for gender diversity is embedded in the structure of the Constitution of Kenya. At present, the two female justices of the Supreme Court form 28% of the seven-member court. For the court to be fully compliant and satisfy the two- thirds gender principle, the Court should have at least 3 members of either gender. The Constitution of Kenya 2010 structured the strict requirement for gender diversity into various chapters of the Constitution.
Under Chapter Four on the Bill of Rights, Article 27(3) provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Under Chapter Ten on Judiciary, Article 172(2) b requires the Judicial Service Commission in the performance of its functions, be guided by the promotion of gender equality. Under Chapter 17 on General Provisions, Article 260 defines a marginalized group as a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27(4). From the provisions listed, it is evident that gender diversity is a sacred requirement of institutions created by the Constitution. The consistent and elaborate articulation of gender diversity is evidently a safeguard of the principle by the framers of the Constitution. Despite the clear legal pronouncements on the issue, gender consideration has not been the central consideration in the recruitment of past chief justices.
Similarly, Section 3(j) of the Judicial Service Act requires the Judicial Service Commission and Judiciary to facilitate the promotion of gender equity in the Judiciary. 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 . Interpretation of Article 260 on the definition of “marginalized group” presumes that any state agency populated without the consideration of the Two-thirds gender principle would be marginalization by practice. If 3 members of the Supreme Court do not belong to either gender, the Judicial Service Commission’s population of the court would not have satisfied the constitutional requirement.
The former Chief Justice’s advice to the President to dissolve Parliament according to Article 261(7) of the Constitution set a threshold on gender diversity . In the advice to the President, the Chief Justice observed in paragraph 4 that;
“Cognizant of the discrimination that sections of our society had suffered for centuries, the Kenyan people enacted Article 27 of the Constitution which prohibits any form of discrimination on grounds, amongst others, of race, sex, ethnic or social origin, age, disability or religion. To remedy the situation and “give full effect to the realization of the rights guaranteed under the Constitution, Article 27 directs the State to “take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination”.
We note, for historical context, that the independence of Kenya’s Judiciary was questioned significantly, prior to the promulgation of the 2010 Constitution. The discriminations cited in the Advisory by the Chief Justice, on various sections of the society were perpetrated by all arms of government (Judiciary included). The observations made by the Chief Justice are therefore accurate and should be instructive in holding all arms of government to account.
Further, we note that the failure to enforce the Two-thirds gender principle in the composition of the Court, is a fault of the Judicial Service Commission, given their role in recruitment, and not the members of the court. On the issue of accountability, the Chief Justice continues in Paragraph 26;
“In the circumstances, let us endure pain, if we must, if only to remind ourselves, as a country, that choices, and particularly choices on constitutional obligations, have consequences. Let us endure pain if only to remind the electorate to hold their Parliamentary representatives accountable. Let us endure pain if only to remind ourselves that, as a country, being a democracy that has chosen to be governed by the rule of law, we must say no to impunity and hold everyone accountable for their actions or omissions”.
The Judicial Service Commission in this case must be held accountable based on its mandate in Article 172 of the Constitution and the Judicial Service Act. The costs of reversing scenarios that contravene Article 27(8) of the Constitution are significant. As the apex court of the land, questions of its composition can affect the nature of its decisions and any persons appearing before it can question its constitutionality.
Conclusion
For it to be constituted in line with Article 27(8) of the Constitution, the Supreme Court ought to comprise at least three members of either gender. Any scenarios that would lead the Judicial Service Commission to recommend any choices that populate the court in contravention of the Two-thirds gender principle would have significant opportunity costs and would be an inefficient trade-off. At the minimum, the two vacant seats to be filled should be distributed between either gender.
References
Kenya has benefited from its relations with the world. Multilateral, plurilateral or bilateral relationships with other countries has increased Kenyan firms and individuals market access, peace cooperations, import sources and aid. Kenya has trade relations with the United State of America and the Islamic Republic of Iran. One of the most consequential relationships between the […]
The National Infrastructure Fund Act (No. 4 of 2026) took effect on 25 March 2026 with a headline financing target: to raise about Ksh 5 trillion over ten years for highways, railways, ports, energy, information and communications technology, water and irrigation. The plan works like this. Privatization proceeds become the Fund’s starting capital. That capital […]
Introduction The matatu metaphor can be used to analytically frame Kenya’s budget as a system that is subject to binding constraints, evolving expectations, and continuous adjustment to shocks. Like the matatu sector, fiscal policy reflects a balancing act between efficiency and quick action seeking to respond to public service delivery while constrained by competing sector […]
Introduction Imagine paying the same fare to travel at 6 a.m. as you would at 6 p.m., even though the matatu is half-empty in the morning and packed in the evening. At 6 a.m., there may be more seats available than passengers willing to pay for them. By 6 p.m., the situation is reversed. Hundreds […]
Absurd hypotheticals are useful precisely because they stress-test a system until its constraints become visible. This note asks what would break first if SpaceX, now a public company following its record-breaking Nasdaq debut in June 2026, with a post-IPO market value of approximately US$ 2.5 trillion, sought a secondary cross-listing on the Nairobi Securities Exchange. […]
| Post date: Mon, Mar 29, 2021 |
| Category: General |
| By: Jackline Kagume, Leo Kipkogei Kemboi, |
The Constitution of Kenya, 2010, under Article 27, requires that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. The Two-thirds Gender principle is founded on the right to equality and freedom from discrimination, entrenched in the Constitution. The spirit of this principle is that “wwomen and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres”. Following the declaration of vacancy for the position of Chief Justice of the Republic of Kenya in January 2021, and retirement of Justice Jackton Ojwang in February 2020, there is an ongoing recruitment for Chief Justice and Judge of the Supreme Court .
All Judges in Kenya are recruited by the Judicial Service Commission (JSC) through an open and competitive process and recommended to the President for appointment per Article 172 of the Constitution and the Judicial Service Act. The JSC is an independent commission established under Article 171 of the Constitution. The Constitution details the Commission’s composition to include the Chief Justice as Chairperson, one Supreme Court Judge, one Court of Appeal Judge, one High Court Judge, one Magistrate, Attorney General, two advocates representing the statutory body for lawyers, one person nominated by Public Service Commission and one woman and one man to represent the public, appointed by the President with the approval of the National Assembly .
The Supreme Court is established under Article 163 of the Constitution and is the apex court in the Republic of Kenya. It is considered the final arbiter and interpreter of the Constitution . The Court is composed of the Chief Justice as the President of the Court, Deputy Chief Justice as the Vice President and five other judges. It has exclusive original jurisdiction to hear and determine disputes relating to elections to the Office of the President. The Court also has appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by law. The Supreme Court may give an advisory opinion at the request of the national government, any State organ or any county government. Its decisions are final and all courts, other than the Supreme Court, are bound by its decisions.
In this piece, we argue that the Judicial Service Commission, the Supreme Court and by extension the whole Judiciary, acting within the limits of the Constitution, ought to interpret their mandate in a manner that advances rights, as outlined under Article 259. Article 259(1) requires the constitution be construed in a manner that promotes purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and contributes to good governance. Based on analysis of the laws and facts presented, we settle on two reasons why the next Chief Justice or Judge of the Supreme Court should be of the female gender.
The requirement for gender diversity is embedded in the structure of the Constitution of Kenya. At present, the two female justices of the Supreme Court form 28% of the seven-member court. For the court to be fully compliant and satisfy the two- thirds gender principle, the Court should have at least 3 members of either gender. The Constitution of Kenya 2010 structured the strict requirement for gender diversity into various chapters of the Constitution.
Under Chapter Four on the Bill of Rights, Article 27(3) provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Under Chapter Ten on Judiciary, Article 172(2) b requires the Judicial Service Commission in the performance of its functions, be guided by the promotion of gender equality. Under Chapter 17 on General Provisions, Article 260 defines a marginalized group as a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27(4). From the provisions listed, it is evident that gender diversity is a sacred requirement of institutions created by the Constitution. The consistent and elaborate articulation of gender diversity is evidently a safeguard of the principle by the framers of the Constitution. Despite the clear legal pronouncements on the issue, gender consideration has not been the central consideration in the recruitment of past chief justices.
Similarly, Section 3(j) of the Judicial Service Act requires the Judicial Service Commission and Judiciary to facilitate the promotion of gender equity in the Judiciary. 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 . Interpretation of Article 260 on the definition of “marginalized group” presumes that any state agency populated without the consideration of the Two-thirds gender principle would be marginalization by practice. If 3 members of the Supreme Court do not belong to either gender, the Judicial Service Commission’s population of the court would not have satisfied the constitutional requirement.
The former Chief Justice’s advice to the President to dissolve Parliament according to Article 261(7) of the Constitution set a threshold on gender diversity . In the advice to the President, the Chief Justice observed in paragraph 4 that;
“Cognizant of the discrimination that sections of our society had suffered for centuries, the Kenyan people enacted Article 27 of the Constitution which prohibits any form of discrimination on grounds, amongst others, of race, sex, ethnic or social origin, age, disability or religion. To remedy the situation and “give full effect to the realization of the rights guaranteed under the Constitution, Article 27 directs the State to “take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination”.
We note, for historical context, that the independence of Kenya’s Judiciary was questioned significantly, prior to the promulgation of the 2010 Constitution. The discriminations cited in the Advisory by the Chief Justice, on various sections of the society were perpetrated by all arms of government (Judiciary included). The observations made by the Chief Justice are therefore accurate and should be instructive in holding all arms of government to account.
Further, we note that the failure to enforce the Two-thirds gender principle in the composition of the Court, is a fault of the Judicial Service Commission, given their role in recruitment, and not the members of the court. On the issue of accountability, the Chief Justice continues in Paragraph 26;
“In the circumstances, let us endure pain, if we must, if only to remind ourselves, as a country, that choices, and particularly choices on constitutional obligations, have consequences. Let us endure pain if only to remind the electorate to hold their Parliamentary representatives accountable. Let us endure pain if only to remind ourselves that, as a country, being a democracy that has chosen to be governed by the rule of law, we must say no to impunity and hold everyone accountable for their actions or omissions”.
The Judicial Service Commission in this case must be held accountable based on its mandate in Article 172 of the Constitution and the Judicial Service Act. The costs of reversing scenarios that contravene Article 27(8) of the Constitution are significant. As the apex court of the land, questions of its composition can affect the nature of its decisions and any persons appearing before it can question its constitutionality.
Conclusion
For it to be constituted in line with Article 27(8) of the Constitution, the Supreme Court ought to comprise at least three members of either gender. Any scenarios that would lead the Judicial Service Commission to recommend any choices that populate the court in contravention of the Two-thirds gender principle would have significant opportunity costs and would be an inefficient trade-off. At the minimum, the two vacant seats to be filled should be distributed between either gender.
References
Kenya has benefited from its relations with the world. Multilateral, plurilateral or bilateral relationships with other countries has increased Kenyan firms and individuals market access, peace cooperations, import sources and aid. Kenya has trade relations with the United State of America and the Islamic Republic of Iran. One of the most consequential relationships between the […]
The National Infrastructure Fund Act (No. 4 of 2026) took effect on 25 March 2026 with a headline financing target: to raise about Ksh 5 trillion over ten years for highways, railways, ports, energy, information and communications technology, water and irrigation. The plan works like this. Privatization proceeds become the Fund’s starting capital. That capital […]
Introduction The matatu metaphor can be used to analytically frame Kenya’s budget as a system that is subject to binding constraints, evolving expectations, and continuous adjustment to shocks. Like the matatu sector, fiscal policy reflects a balancing act between efficiency and quick action seeking to respond to public service delivery while constrained by competing sector […]
Introduction Imagine paying the same fare to travel at 6 a.m. as you would at 6 p.m., even though the matatu is half-empty in the morning and packed in the evening. At 6 a.m., there may be more seats available than passengers willing to pay for them. By 6 p.m., the situation is reversed. Hundreds […]
Absurd hypotheticals are useful precisely because they stress-test a system until its constraints become visible. This note asks what would break first if SpaceX, now a public company following its record-breaking Nasdaq debut in June 2026, with a post-IPO market value of approximately US$ 2.5 trillion, sought a secondary cross-listing on the Nairobi Securities Exchange. […]