Affirmative Action and the Supreme Court Bench

The right to equality under article 27 in the new constitution is clear:

“…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”

It is indeed sad that Kenyans have to rush to court to remind the Government to keep the promise it made to the People of Kenya at the moment of promulgation of the Constitution barely a year ago.

Why must women be made to beg for their rights?

The Supreme Court as presently constituted has 2 female justices and 5 male justices. Simple math shows that 5/7 is well above the two thirds limit and ofcourse 2/7 falls short of the minimum one third. The JSC and other old school legal minds (with all due respect) may argue that the number 7 is indivisible and decimals cannot be used to argue for the inclusion of more women in instances where the math doesn’t exactly add up. This amounts to trivialising a very serious matter. Instead of pointing at women standing up for their rights, why not point the accusing finger at the JSC for breaching our constitution?
In this connection, FIDA’s case in court should not be reduced to a procedural non-starter as blogger ‘Kenyan Jurist’ opines, it is an important moment for our government to show that it has broken with the past of inequality and it is committed to embracing the values and ideals enshrined in our new constitution.

No one disputes that the law was followed throughout the selection and vetting stages of the Supreme Court nomination process but a flawed outcome invalidates all the good work, precious time and valuable resources spent on picking suitable Kenyans to sit on the bench of Kenya’s first Supreme Court.

Affirmative action by definition means preferential treatment for disadvantaged groups of people. There are two ways of looking at affirmative action: it is either an exception to the right to equality or as part of the right to equality. Our new constitution takes the latter view and sees affirmative action as a means to the end of a more equal society. In South Africa for instance, affirmative action focused on past racial inequality. Segregation and apartheid created a political and economic system that favoured some people and unfairly discriminated against others. In Kenya, it is clear that deeply entrenched gender inequality has been the single greatest barrier to women and men having the right to equal treatment, including the right to equal opportunities particularly in political and economic spheres.

Today marks the swearing-in of our new Chief Justice Prof Willy Mutunga and Deputy Chief Justice Nancy Barasa as President and Vice President of the Supreme Court, respectively. After today’s ceremony, I believe their first order of business should be to address this obvious constitutional breach in the formation of their Court. Conclusively addressing this issue will be a positive start to their terms of office and inspire public confidence in their ability and willingness to uphold the letter and spirit of our Constitution.

3 thoughts on “Affirmative Action and the Supreme Court Bench

  1. While we may argue that following the letter and spirit of the constitution has been breached here….I think this case while right…has been overtaken by events. Reason is…..the 5-nominees are the new Supreme Court Judges in all but name! The swearing-in is just a formality. This means that if they are to be removed…..a tribunal will have to be formed to look into this matter……using the Constitution article 168 on the Removal of superior judge from Office. Despite the error which has been done… I doubt Mutunga will want to go down that route.

    I don’t know but I think that maybe the Judges to be vetted can have more women to compensate for the Supreme Court Judges. Just a thought.

  2. Pingback: Fallacies of Equality and Inequality: Will Our Rights Lie in Limbo At the Pleasure of the State? | Diasporadical

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