Compliance of Two-Thirds Gender Principle: An Assessment of Kenya’s Judiciary

Kipkogei Kemboi
Post Date: 08 February 2021

By Leo 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. 

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