NAIROBI, Kenya, Aug 25 – Kenya’s Supreme Court is set to begin working after the High Court rejected a bid by women’s organisations to block five judges from taking up their offices.
A three judge constitutional bench dismissed the case by the Federation of Women Lawyers (FIDA) and other women lobby groups which argued that one female nominee out of the five judges was against the constitutional requirement of not having more than two-thirds of the same gender in public bodies.
Justices John Mwera, Mohammed Warsame and Philomena Mwilu ruled on Thursday that the Judicial Service Commission (JSC) did not breach the Constitution when they nominated the five judges.
Judge Mwera however paid attention to the importance of implementing affirmative action through government policies and programmes.
The court ruled that the two thirds principle would be achieved by Parliament through legislation.
The judges also urged the private sector to also incorporate the affirmative action in their companies.
Immediately after the court’s pronouncement lawyer Elisha Ogoya’s for the petitioners applied for a temporary injunction that would stop the swearing in of the Supreme Court Judges but the court rejected it.
Mr Ogoya claimed that if the judges were sworn in, they were likely to preside over their appeal and cited bias.
However lawyer Paul Muite dismissed his reasons saying, “The Supreme Court is not being constituted to hear only FIDA people, there are other appeals.”
He also said it was not obvious that the Appeal Court would rule in the favour of the petitioners.
The new judges were due to be sworn into office on Friday morning at State House.
Speaking after the ruling, National Council for Women of Kenya chairperson, Alice Wahome who was among the petitioners said the ruling was sad since the court had failed to assist in the implementation of a constitutional requirement.
“The judgment is a sad day for women in Kenya because the court has declined to assist the country in the implementation. The court has refused to hold the majesty of interpreting the Constitution,” she claimed.
Ms Naomi said the petitioners would appeal against the ruling made on Thursday.
Kituo Cha Sheria Chief Executive Officer Priscila Nyokabi who also criticised the judgment said it was bad enough that the judges referred the observation of the affirmative action to Parliament and the government.
“I feel sad, not surprised though. I feel sad that the court is treating the two thirds principle as an aspiration. It is a very disappointing judgment. Telling us Parliament has to legislate and government must have programmes that are like after five years and that is when you can question that principle?” she wondered.
Ms Nyokabi however said all was not lost as women would continue fighting for what they have been given by the new Constitution.
JSC had appointed Justices Philip Tunoi, Jackton Ojwang, Mohammed Ibrahim, Njoki Ndung’u and Smokin Wanjala to the highest court in the land.
The five will sit with Chief Justice Willy Mutunga as President and his deputy Nancy Baraza as Vice President of the court.
High Court judge Jeanne Gacheche had in June blocked the swearing in of the five judges following an application by FIDA and five other women lobby groups.