Friday, June 17, 2011
The Kenyan Judicial Service Commission this week selected five candidates to serve on the country's first Supreme Court. But the Federation of Women Lawyers and five other women lobby groups moved to halt the appointments because they violate the new Constitution's requirements for gender balance.
Kenyans approved their new Constitution last August in order to rein in historically expansive and abusive presidential authority through separation of powers, checks and balances, and other progressive rights-protecting features. Chapter 10 sets up an independent judiciary, including, under Article 163, a Supreme Court comprised of seven members (a Chief Justice, a Deputy Chief Justice, and five other judges) with exclusive original jurisdiction to hear disputes related to presidential elections and mandatory appellate jurisdiction over all cases involving the interpretation of application of the Constitution. (The Court also has discretionary appellate jurisdiction over other matters.)
The President appointed Dr. Willy Mutunga as Chief Justice and Ms. Nancy Baraza as Deputy Chief Justice. The JSC selected the five other judges--four men and one woman.
The Federation of Women Lawyers filed an application to halt the JSC-approved appointments, however, because they violate the Constitution. In particular, the Federation argues that the appointments violate Article 27(8), which requires the State to "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." The Federation also argues that the appointments violate Article 172(2)(b), which says that the JSC "shall be guided by . . . the promotion of gender equality."