Since Kenya became a republic in 1964 we have had 14 Chief Justices, all of them men. Since the promulgation of the Constitution of Kenya 2010 the Supreme Court has been constituted in violation of the law, specifically Art. 27(8) that mandates that “not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”
Effectively, the apex judicial court, the one entrusted with the role of upholding the supremacy of the Constitution, as well as its final interpretation has continued to exist in violation of the supreme law. It is time that the Judicial Service Commission (JSC) cured this blatant illegality and ensured that its recruitment for the positions of Chief Justice and Judge of the Supreme Court result in a constitutionally compliant Supreme Court, one whose membership is not super majority male in violation of the maximum gender representation dictated by the Constitution.
The JSC is a constitutional commission established in Article 171 of the Constitution. Article 172(2)(b) further provides that in the performance of its functions, the JSC shall promote gender equality. Read together with Article 27(8) and based on the current composition of the Supreme Court (3 men and 2 women), the JSC is obliged to fill the first available vacancy on the Supreme Court with a woman.
The good news is that to recruit a constitutionally compliant Supreme Court would not mean sacrificing merit. Just the opposite. The JSC has excellent women candidates to choose from. To violate the Constitution again, JSC would need to overlook, among others: a former Dean of the University of Nairobi Faculty of Law, founder of Strathmore Law School and a member of the Committee of Eminent persons appointed by the president to advise the country on the constitution making process; as well as a Court of Appeal Judge and international human rights expert named as by UN Kenya as person of the year in 2020 in recognition of her human rights record and service to the public especially the vulnerable and marginalized in society. Put differently JSC would need to ignore the qualifications and contributions to the country of credible women candidates to recruit another unconstitutional Supreme Court.
The Supreme Court Act, 2011 provides that the purpose of the Supreme Court is to “(a) assert the supremacy of the Constitution and the sovereignty of the people of Kenya; (b) provide authoritative and impartial interpretation of the Constitution;”
How can a Supreme Court that is composed in violation of the Constitution assert the supremacy of the Constitution, or provide credible determinative interpretation of the Constitution? An unconstitutional Supreme Court by definition undermines the Constitution and weakens the authority and legitimacy of the apex judicial body, as well as of the Chief Justice as the head of the judiciary.
Advocacy for constitutional compliance is especially important in light of the alarming trend where public institutions continue to nominate and appoint persons in disregard of the Constitution and the law, including Article 27(8). The effect of these illegal actions has been to lower the standards of the people serving in public institutions which in turn has a negative impact on service delivery to Kenyans. Weaker candidates are often beholden to the appointing authority or other shadow interests, rather than to the Kenyan people. Further, persons appointed in violation of the law are less likely to uphold the law or to hold other persons and institutions accountable. This affects all of us.
More importantly what this trend is establishing is a deterioration in the rule of law and constitutionalism, something which should concern and alarm all Kenyans. When public institutions lead in the violation of the supreme law, they set a national tone for lawlessness.
An unconstitutional Supreme Court is a weak Supreme Court. And we must ask ourselves why would the JSC deliberately weaken an institution as important as the Supreme Court. How are ordinary Kenyans better served by an unconstitutional and weak Supreme Court/Judiciary?
Indeed, given our history of political contestation and the upcoming 2022 general elections, which is also a transition election with a retiring President, an unconstitutional Supreme Court is an unnecessary risk to national stability.
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- Marrilyn Muthoni Kamuru is a feminist, lawyer and writer.