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
While Kenya has long implemented the NHIF (National Hospital Insurance Fund) whose core mandate is to provide medical insurance coverage to all its members and their declared dependants and also to make medical care affordable, enrolment rates, particularly in the voluntary and informal sectors, remain low. Yet, NHIF is the most common type of health […]
Introduction According to the United Nations, Double Taxation Agreements (DTAs) are “bilateral agreements between two countries which allocate taxing rights over income between those two countries thereby preventing double taxation of income. The main objective of DTAs therefore, is to prevent and or eliminate avoidance and evasion of taxes on income and capital by both […]
Courts as Monopolies Access to justice is fundamental in any democratic society, ensuring individuals can pursue their legal rights and seek redress for grievances. However, when courts operate as monopolies, it can have implications for access to justice. Monopolies have exclusive control or dominance over a particular market or industry. Courts are monopolies because they […]
Introduction Public policies are formulated to achieve specific societal outcomes, and when their implementation is delayed or falls short, it can lead to significant adverse consequences on the overall functioning of the system they are designed to govern. Implementation delays in government policies can occur for various reasons. These include intricate and protracted bureaucratic implementation […]
Introduction Every year since 2007, various countries around the world come together to celebrate Data Privacy Day, observed on the 28th of January. For Kenya, this day commemoration, spearheaded by the Office of the Data Protection Commissioner, brings together Data controllers, industry players, consumers and businesses. The theme for the 2024 celebration is: ‘Fostering a […]
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
While Kenya has long implemented the NHIF (National Hospital Insurance Fund) whose core mandate is to provide medical insurance coverage to all its members and their declared dependants and also to make medical care affordable, enrolment rates, particularly in the voluntary and informal sectors, remain low. Yet, NHIF is the most common type of health […]
Introduction According to the United Nations, Double Taxation Agreements (DTAs) are “bilateral agreements between two countries which allocate taxing rights over income between those two countries thereby preventing double taxation of income. The main objective of DTAs therefore, is to prevent and or eliminate avoidance and evasion of taxes on income and capital by both […]
Courts as Monopolies Access to justice is fundamental in any democratic society, ensuring individuals can pursue their legal rights and seek redress for grievances. However, when courts operate as monopolies, it can have implications for access to justice. Monopolies have exclusive control or dominance over a particular market or industry. Courts are monopolies because they […]
Introduction Public policies are formulated to achieve specific societal outcomes, and when their implementation is delayed or falls short, it can lead to significant adverse consequences on the overall functioning of the system they are designed to govern. Implementation delays in government policies can occur for various reasons. These include intricate and protracted bureaucratic implementation […]
Introduction Every year since 2007, various countries around the world come together to celebrate Data Privacy Day, observed on the 28th of January. For Kenya, this day commemoration, spearheaded by the Office of the Data Protection Commissioner, brings together Data controllers, industry players, consumers and businesses. The theme for the 2024 celebration is: ‘Fostering a […]