Introduction
Dispute
Decision
Comment
Introduction
The Constitution of Kenya 2010 was heralded as giving hope to those who have historically been marginalised or disadvantaged. These include women, people with disabilities and inhabitants of the semi-arid and less developed parts of Kenya. Article 27(8) of the Constitution, in particular, requires the state to take legislative and other measures to ensure that no more than two-thirds of elective or appointive positions are occupied by persons of the same gender. Relying on the provision, female parliamentarians and women's organisations have endeavoured to ensure that women occupy at least one-third of the appointive positions which have been established under the new Constitution. Recently – and in a clean break from the past, when women comprised a tiny minority of appointees to high positions in public service – half of the 28 judges appointed to the High Court were women. However, women fared less well in the appointment of judges of the Supreme Court, the highest court in the country.
Dispute
The Judicial Service Commission, after a thorough vetting process, recommended seven people for appointment to the Supreme Court, comprising five men and two women. Women's organisations were outraged and instituted a case in the High Court.(1) The gist of their case was that, by simple arithmetic, the appointment of five male judges to the Supreme Court constituted more than two-thirds of the total members of the court, contrary to Article 27(8) of the Constitution, which provides that "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".
On the other hand, the respondents (ie, the attorney general and the Judicial Service Commission) contended that Article 27(8) of the Constitution is merely a statement of principle and an aspiration. It was not intended to give a right to any gender to claim a particular proportion of appointments. Instead, the section merely imposed a duty on the state to take legislative and policy measures to ensure that the 'two-thirds' principle was observed. The respondents argued that as long as the state has not put in place legislative and policy measures pursuant to Article 27(8) of the Constitution, it cannot be claimed that the provision has been breached by appointments that do not strictly comply with the principle.
In its ruling of August 25 2011 the High Court bench of three judges upheld the respondents' position. Accordingly, the court ruled that it is not open for a person to challenge appointments to public positions on the basis of the two-thirds principle until the state takes legislative or other measures to give effect to Article 27(8). In its words:
"To the Petitioners and supporters we advise that you keep your feminine missiles to their launch pads until the State acts on policies and programmes as are envisaged in Article 27(6) and (8) and the Legislature has legislated accordingly to set the formulae, mechanisms and standards to implement the spirit and import of the whole Constitution within the time frame set by the Constitution or in default of their complying within that time frame".
This decision deals a blow to those organisations which have campaigned to ensure that women occupy at least one-third of all public positions in Kenya. As result of the ruling, women will have to wait until the state puts in place the legislative and policy measures contemplated in Article 27(8) of the Constitution. It will be interesting to see what measures the state will come up with.
For further information on this topic please contact Grishon Ng'ang'a Thuo at Njoroge Regeru & Company by telephone (+254 20 271 8482), fax (+254 20 271 8485) or email ([email protected]).
Endnotes
(1) Nairobi High Court Petition 103 of 2011, Federation of Women Lawyers, Kenya v The Honourable Attorney General.