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.

Why Are Guns Illegal Again?


I talk about guns a lot. Usually it’s how cops mishandle them, or kill innocent people with them, or kill people that they claim aren’t innocent with them. I also at some point mentioned that I had my own small arsenal and am quite a fan of the science/art behind firearms.

But also, it’s a matter of principle. Continue reading

Promulgation Day: We Were There.

Where were you on the 27th of August 2010 circa 10:25pm?

Most of my fellow middle-class Kenyans decided to watch history being made in the comfort of their living-rooms at home. That was their choice.
But I, as an able-bodied, sound-minded, patriotic Nairobian had to see it with my own eyes. I tried reaching out to friends and colleagues to tag along but they all cowered. Some planned to spend the eve of Promulgation Day in and out of clubs in Westlands (Bend-over Thursdays, I believe it’s called), while most of you thought that going to Uhuru Park for this historic and unprecedented event was either the funniest or the craziest thing you’ve ever heard.

Continue reading

A New Kenya


It’s redundant to reiterate just how important today is in the history of this nation. Even more redundant to point out the implications this will have for the future.

But it’s hard not to be slightly, if not totally, awed at being alive at such a great time as our great country finally signs into law our constitution – not some reject adoption from exiled colonialists. Our very own baby gets baptized today.

How cool is that?

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Lest We Forget: The Unsung Heroines for Constitutional Reform in Kenya

Mother & Daughter (c) M-Y-R-AAfter 20 long years of struggle for a new constitution, we have finally crowned the Second Liberation with a clear win. This has not come easy. It has come through blood and sweat, eating of teargas, sleepless nights and many anxious moments in our checkered political history.

Without doubt, most Kenyans, some more than others, have played a role to make this happen. But as with the first liberation struggle, I am afraid that after the dust has settled and the curtain closes on the celebration parties, one crucial sector of the society that played a very key role to make this happen may soon be forgotten, as battle for power and recognition takes centre stage Kenya-style. Who am I talking about? Continue reading

Waxing lyri… political

I don’t do politics – not generally. I don’t have any deep-seated opinions on this whole who-rules-who-how-where thing. I know that I have my new purple pinkie though I think the old one looked cooler. This one is all soft, wishy-washy, and the photo looks worse the one on my ID, which is a feat in itself.

I don’t plan to vote yes or no … which is an extremely daft admission. Why? Because saying ‘constitution’ makes people think you’re smart, even when they have no clue what you’re on about.

And that’s my problem. I like to look smart. I’m supposed to know about stuff like this. But I’ve read the constitution – the old one. Scratch that – I’ve tried to read the constitution. I didn’t get very far. Why? Because it’s boring. Incomprehensible as well, but mostly boring. Continue reading