Of two-thirds gender rule and Supreme Court composition: A commentary on the Court of Appeal decision in Civil Appeal No 234 of 2017

The gender principle passed in the 2010 Constitution was an unintended consequence of the underrepresentation of the women gender consistently in all arms of government since independence. Article 27(8) requires the state to take legislative measures to implement the principle that not more than two thirds of the members of elective and appointive bodies shall be of the same gender. Judiciary is one of the arms of the government thus it is obligated to comply with the two thirds gender principle.[1]

Introduction

Charles Mwaura in ‘Principles of Constitutional Law’[2] posits that the life of the law is not only logic but experience. In a democracy, law, perhaps most law, is not decreed from the high echelons of power, but bubbles up from the interested publics, affected groups, specialists, legislatures, market places and others, all interacting through meetings, journal articles, the popular press, legislative hearings and in many other ways. In other words, it gets its shape from everyday experience. That is the democratic process in action.

The Constitution gives us the acumen that aids us to decode and define our society, where we stand and where we are heading. It is intimately concerned with giving meaning to ourselves and our relations with others. The provisions of the Constitution are thus to be midwifed by the citizens if at all the citizens are willing to make the various provisions of the Constitution come to life for their own betterment. The Constitution is bound to be as good as our involvement and engagement with it. Our Constitution can promise to shelter us from the evils of unchecked power, in the form of political rights. It can promise us milk and money in the form of socio-political rights. But it cannot protect us if we lack the courage and the self-restraint, to protect and defend it and by extension ourselves.[3]

In a similar vein, the nature and content of the Constitution can only be properly understood against the background political theory that a society actually espouses. The text of the Constitution and case law touching on constitutional issues reveal the path of a country’s history, a reflection of people’s deepest aspirations and values and the various political conflicts within the political and social arena. In other words, a Constitution is not only a legal document but also a historical, social as well as political manifesto.[4] No one Constitution will be exactly the same as another. This is because Constitutions contain elements that are autobiographical in terms of each country and different historical contexts generate different idiosyncratic preoccupations.[5]

Foremost to this paper is Article 27(3) of the Constitution which is the crux of the petition this paper aims to give an exposition on.[6] Luis Franceschi and PLO Lumumba argue that:

Essential to the enjoyment of other fundamental rights and freedoms recognized is the right of all individuals to be considered equal and therefore not be discriminated. Accordingly, Article 27 expressly recognises the right of every person to be regarded and treated equally before the law. Equality in this Article is deemed to include enjoyment of all rights and freedoms. Under Article 27 of the Constitution, the principle of equality is expressly provided as an important value which must be promoted by judicial or other authorities when interpreting the Bill of Rights.

The Constitutional commitment to equality is supported by the six essential values on which the aspirations of good governance of all Kenyans should be based. Article 10 of the Constitution expressly includes equality as one of the national values and principles of good governance. This means that all state organs, state officers, public officers and all persons shall be bound to take equality into account with regard to constitutional application or interpretation; application of any law and the formulation and implementation of public policy.[7]

The two learned Professors proceed to observe that even though the Constitution does not deliberately ignore discrimination, it nonetheless gives provisions for affirmative action. Why is this the case? One may pose such a question. It has to do with the recollection of past incidences of inequalities that were courtesy of historically discriminative structured, laws and institutions in society and government policies. Affirmative action as a policy was purposefully designed so as to make right former discrimination against women and minority groups through measures aimed at improving their economic and educational opportunities.[8]

A chronicled analysis of Kenya in every part of pre-colonial, colonial and post-independence era gives the impression women. A general trend, however, has been either that women have been subtly discovered from the mainstream society or that the law has out rightly discriminated against them in many spheres of life[9]. Ruth Aura and Maurice Oduor postulate that: ‘Anti-discrimination principles are perhaps the most effective bulwark against oppressive public and private action. They provide the standard against which the legality of certain actions and decisions are measured. Thus it is that the Constitution provides fundamentally that every person is equal before the law and has the right to equal protection and equal benefit of the law. For avoidance of doubt, it provides that women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres. This is clearly intended to reverse the historical exclusion that women have endured in the society.[10]

It must be borne in mind that merely providing for equality is not sufficient for; there is nothing more unequal than the equal treatment of unequal people. More practical measures need to be effected if this equality is to be meaningful. For this reason, Article 27(6) of the Constitution imposes an obligation on the State to take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.[11]

The State is under an obligation to ensure that historically marginalised groups like women will firstly, be free to participate in mainstream society including political leadership, and secondly, that certain positions will be reserved for them so that they do not have to suffer the rigors of unequal political competition. This is simply to allow them to catch up with those who have been in the game for a while and have had a head start. The petition by Adrian Kamotho brings to light Article 27 of the Constitution as well as other constitutional provisions. This paper proceeds to give a commentary on the case highlighting the reasoning of the learned judges.[12]

Background of the case

In the year of the Lord 2016 to be specific in the month June, three (3) vacancies arose in the Supreme Court of Kenya for the positions of Chief Justice, Deputy Chief Justice and Judge of the Supreme Court. The Judicial Service Commission, advertised and shortlisted candidates for these positions. After the recruitment process, the Judicial Service Commission nominated for appointment His Lordship, the now Retired Chief Justice David Maraga, Her Ladyship, the Deputy Chief Justice Philomena Mwilu and His Lordship, the Hon Mr. Justice Isaac Lenaola.

Justice Lenaola was the last Judge of the Supreme Court to be appointed after the aforesaid recruitment process. As such, the Supreme Court of Kenya’s composition comprised five men and two women. The appointment of Justice Lenaola to the Supreme Court was perceived to have made the composition of that Court unconstitutional, leading to the filing of the consolidated petitions from which this appeal arose.

The National Gender and Equality Commission, (NGEC) filed a petition, High Court Petition No 456 of 2016, based on these facts, contesting the Judicial Service Commission process of recruitment and the appointment of Justice Isaac Lenaola. At the same time Adrian Kamotho Njenga, the appellant herein, filed a similar petition challenging the recruitment on various grounds.

The gist of the arguments in those two petitions was that the Judicial Service Commission had acted in violation of the Constitution by making recommendations that led to the appointment of more than two-thirds of judges of the Supreme Court as being of the male gender. In sum, the two petitioners alleged that the Judicial Service Commission had violated the Constitutional obligation to ensure equality and freedom from discrimination as enshrined in Article 27 of the Constitution of Kenya by failing to appoint the requisite proportion of members of the female gender to the Supreme Court of Kenya.

The Trial Court held that while it would have been ideal to recommend a woman to the position that was occupied by Justice Lenaola, there was no clear breach of the Constitution. As such, the Supreme Court, as it then was constituted, did not violate the Constitution. Key to note this wasn’t the only finding of the High Court, this above finding on Justice Lenaola position is the crux of this whole case and thus worth mentioning.

It is based on the High Court decision that the appellant set out 20 grounds of appeal upon which he challenged the judgment of the High Court, all of which were presented in person by learned counsel, Mr. Njenga who is the appellant. While the grounds that form the challenge of the decision of the trial court were set out in 20 grounds of appeal, the three Court of Appeal judges condensed them.

Issues before the court

There were five issues before the court which I reproduce as follows:

  1. Whether the trial court failed to take into account Sections 3,13,47 and 14 of the First Schedule of the Judicial Service Commission Act and Section 10 (2) (b) of the Public Service (Values and Principles) Act 2015
  2. Whether the trial court failed to take into consideration that the maximum period to realize the principles set out in Article 27 of the Constitution was five years, and whether its decision unlawfully departed from the Supreme Court precedent in the Advisory Opinion No. 2 of 2012, In Matter of the Principle of Gender Representation in the National Assembly and the senate [2012] that required the Constitution to be implemented progressively upto the year 2015
  3. Whether the recruitment process complied with the decision of Supreme Court No. 2 of 2012
  4. Whether the recruitment of the 4th respondent was unconstitutional
  5. Whether the failure of the Judicial Service Commission to act of advisory opinion of National Gender and Equality Commission contravened Articles 59, 248, 249 and 252 of the Constitution

Court findings

In the determination of the first issue, the court had to begin by considering the appropriate recruitment criteria to be adopted in appointing Judges of the Supreme Court. Judges of the Supreme Court are recruited in accordance with criteria set out in Article 166 (3) of the Constitution. This provision is given life through the Judicial Service Act and buttressed by other provisions of the law, such as Section 10 (2) (b) of the Public Service (Values and Principles) Act 2015, particularly Sections 3, 13 and 14 of the First Schedule to the Judicial Service Act.

Section 3 of the Judicial Service Act provides for the procedures that the Chief Justice ought to take when there is a vacancy in the office of a judge. Section 13 of the First Schedule provides the criteria for the evaluation of qualifications. In determining the qualifications of the individual applicant, the Judicial Service Commission is obligated to be guided by professional competence, written and oral communication skills, integrity, fairness, good judgment, legal and life entitlement, and demonstrable commitment to public and community service. Section 14 then requires the Judicial Service Commission, after the conclusion of the interviews, to deliberate and nominate the most qualified applicants after taking into account the gender, regional, ethnic and other diversity of the people of Kenya. The gender consideration is also contained in section 10(2)(b) of the Public Service (Values and Principles) Act 2015 which allows the public service, or indeed any public institution to appoint or promote public officers without undue reliance on fair competition or merit where the balance of gender in the public service or in a public institution is biased towards one gender.

The provisions above were relied on by the appellant strongly submitting that the Judicial Service Commission and the trial court failed to take them into consideration. The appellant argued that the trial court ignored these constitutional and statutory imperatives, instead adopting an appointment criterion that was alien to the stipulations of Article 166(3) of the Constitution by holding that while the gender consideration was important, it ought to be considered only after the question of merit was ascertained.

On the flipside, Issa Mansur who was representing the Judicial Service Commission took the position that Article 166, 172 and 232 of the Constitution require that merit and competency must be the primary considerations when undertaking appointments to fill the office of a judge. The three judges jilted Mansur’s position. The judges noted that:

In our view, it cannot be said that merit should be a primary consideration and that gender becomes a secondary consideration. This is because the Constitution and the Judicial Service Act outline factors that the Judicial Service Commission is required to take into consideration. Firstly, the two-thirds gender principle is a constitutional directive. It is framed in imperative terms and is a mandatory factor that the 1st respondent should take into consideration when recruiting for the office of vacancy of the judge. The question of gender is as important as the one of competency. Every state organ, the 1st respondent included, is enjoined to ensure that the two thirds gender principle set out in Article 27(8) of the Constitution is complied with. When undertaking recruitments it is bound by law to inculcate, this constitutional edict in the recruitment process.

Secondly, the 1st respondent must ensure that measures are introduced to incorporate the gender imperative, alongside merit, fairness, good judgment and overall competence. To hold otherwise, would in every instance result in a recruitment process that does not accord with the responsibility placed on organs such as the 1st respondent – and would ultimately lead to appointments that are contrary to the dictates of the Constitution. It is situations such as these that Articles 27(6) and (8) of the Constitution were promulgated to address.

This leads us to the composition of judges in terms of gender who should sit on the Supreme Court so as to render it constitutionally compliant. The appellant asserted that the correct composition should have resulted in at least three members of the Court being of the female gender. In his view, even where the decimals are applied, a correct interpretation of the provision would mean that the composition of the judges of the court should never at any time be less than 1/3 of members of one gender. In this case, at least 3 members of the court would require to be of the female gender.

Despite the fact that the composition of the Supreme Court has since realigned to accord with the ratio 4:3 which Mr. Njenga contends is constitutionally compliant, counsel urged us to consider the issues raised in this appeal and give guidance proportion of members of either gender who should be appointed to the position of judges in the Supreme Court; that in the current context, a mathematical computation when translated into decimals, would result in 4.7 male judges; that this cannot be rounded off upwards to mean 5 male judges. It should be properly interpreted to mean that no more than four male Judges may be appointed to the Court.

Related to this is the issue of whether Article 27(8) of the Constitution and precedent from the Supreme Court bound the 1st respondent to ensure that it recruited no more than four members of one gender to the Court, and that by 2016, it ought to have ensured progressively that the gender principle was attained with regard to the composition of the Supreme Court.

Arguing on behalf of the 1st respondent, Mr. Issa submitted that the appellant did not properly appreciate the principles at play in appointment of judges to the superior courts. The Judicial Service Commission position is that the first criteria required by the law, both under the Constitution and the Judicial Service Act is to ensure that the judges are appointed on merit; that the 1st respondent must then look at the entire Judiciary to determining whether the appointments meet the constitutional requirements of gender balance and merit. As an example, he stated that the magistracy has more women than men, and therefore in total, there is gender equity within the Judiciary and therefore the Constitutional principle was properly adhered to.

For this reason, he argued that the trial court correctly held that while the Supreme Court already had two female judges, and that the rest of the judicial service, that is the entire Judiciary, was adequately staffed with women; and that therefore, the gender principle had not been violated. He further argued that the mathematical calculations favoured by the appellant were impractical since the paramount duty and obligation of the Judicial Service Commission is to consider the candidates vis a vis the available vacancies on merit and competency in the first instance.

The learned Judges quoted FIDA-K case[13] in which the court appreciated that the State had an obligation to put in place measures for the realization of a more equal society free from discrimination, the Court then proceeded to state that:

“In regard to Article 27(4), the drafters were aware of the past history of discrimination and realized that it was necessary both to proscribe such forms of discrimination and to permit positive steps to redress the effects of such discrimination. The Constitution has also identified various vulnerable groups of our society who have been victims of discrimination in the past. The extent to which the Constitution has addressed their grievances is both immediate and in future. Article 27 as a whole is clearly not only meant to prevent discrimination or inequality, but also in our context and history to eliminate them presently and in the future. It is an attempt to level the playing field where legislation is inadequate or does not address the needs of a particular vulnerable group. To the extent that people were disadvantaged by the past discriminatory laws or practices in the socio, economic, political and education fields, Article 27(8) permits Parliament to enact legislation for the advancement of such people.”[14]

In a similar vein, in the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, the Supreme Court echoed the history behind Article 27 of the Constitution, noting that the state had a particular responsibility towards ensuring that women, and this can be extended to other appointive positions – for historical reasons, were neglected for consideration to appointive or elective office.

The Court pronounced itself as follows:

“We take judicial notice that women’s current disadvantage as regards membership of elective and appointive bodies, is accounted for by much more than lack of political will. It arises from deep-rooted historical, social, cultural and economic-power relations in the society. It thus, must take much more than the prescription of gender quotas in law, to achieve effective inclusion of women in the elective and appointive public offices. For the female gender to come to occupy an equitable status in civil and political rights, the State has to introduce a wide range of measures, and affirmative-action programmes. It is not the classification of a right as economic, social, cultural, civil or political that should suit a particular gender-equity claim to the progressive mode of realization; it is the inherent nature of the right that should determine its mode of realization. It is relevant in this regard, that Article 27(8) of the Constitution calls for “legislative and other measures” to be taken by the State, for the realization of the gender-equity rule. That such “other measures” are generic, underlines the draftsperson’s perception that the categories of actions, by the State, in the cause of gender-equity, are not closed.”[15]

In both decisions rendered over 10 years ago, the courts were of the view that the gender quotas, the subject of the litigation, could only be progressively realized after giving the State time to implement such measures as contemplated by the Constitution for the attainment of the gender principle. More importantly, in the Advisory Opinion No 2 of 2012 (supra), the Supreme Court set down a timeframe for the progressive implementation of the gender principle, by holding that a full realization of the gender quota was to have been reached by 27th August 2015.

With the aforementioned, the Supreme Court was not compliant with the gender principle set out in Article 27 of the Constitution when it comprised 5 out of 7 members of one gender. The three learned judges were of that considered view. They observed that:

With a total composition of 7 members, it is apparent to us that when 5 members of the court are of one gender, then no matter the mathematical manoeuvring, be it expressed in decimals or fractions, it would still result in more than 2/3 of the members of the court being of one gender, and that is in violation of a fundamental constitutional imperative. In this regard, we agree with the exposition by the appellant’s counsel that a purposive interpretation of Article 27(6) and (8) of the Constitution is necessary. In other words, an interpretation when construed within the recruitment process takes into account the spirit of the Constitution, the history of the gender and equality provisions as well as the historical context and results in a Court where no more than four members are of one gender.

The historical context outlined by the High Court and the Supreme Court in the FIDA-Kenya v Attorney General and Advisory Opinion No 2 of 2012 (supra) resulted in systemic discrimination, and this necessitated a constitutional edict pursuant to Article 27(6) and (8), intended to ensure that the notions of equality and equal protection before the law are realized. In effect, the Constitution requires that the two-thirds gender rule be implemented by the State, and all state organs, including the 1st respondent through the introduction of measures to address disadvantaged groups who have experienced and continue to experience discrimination.

On the next issue, the Court of Appeal judges were of the considered view that the appointment of Justice Lenaola was not unconstitutional. For it was apparent that the appointment of Justice Lenaola was made in accordance with the procedure set out in the Judicial Service Act and the 1st Schedule thereto, as well as the aspirations contained in Section 10 of the Public Service (Values and Principles) Act 2015. In the said provisions there are provisions for gender consideration however the JSC did not take it as a primary consideration as per the documents filed in court.  The Judges noted as follows:

Clearly, it was the application of this law, which relegated the gender aspect to a secondary consideration and resulted in the Supreme Court composition falling short of Article 27 (8) of the Constitution. As we have stated, both the High Court and the Supreme Court have held that the state, through its agencies such as the Judicial Service Commission were to take specific measures, in incremental steps, to ensure that a fair share of women were appointed or elected to positions by the state. Progressive realization means that until those measures are taken, previous actions taken by the respondents do not violate the Constitution provided that in good faith measures are initiated to ensure that eventually, the constitutional goal is reached. During the recruitment of Justice Lenaola, the situation at the time was that, no mandatory obligations to take measures to promote affirmative action in favour of women judges during the recruitment process were in place.

Given the passage of time since the Constitution was promulgated, there remains an obligation on the Judicial Service Commission to embark on taking deliberate steps to commence a process or processes and ensure substantive gender equality as espoused in Article 27 (6) and (8) of the Constitution is realized. We take judicial notice that following the recruitment for that court conducted by the Judicial Service Commission in 2021, the composition of female to male judges has reached the constitutional threshold 3:4, with the result that the court is presently constitutionally compliant. The challenge on the appointment of Justice Isaac Lenaola is without basis.

The learned Judges rejected Issa Mansur’s difference of opinion on the composition of the judicial service on the grounds of substantive equality that is expressed in Article 27 of the Constitution; where past inequality is recognized and where redress is envisaged. The learned Judges were of the view that:

To argue that because the lower cadres of the judicial service are staffed with more members of one gender does not mean that the judicial service as a whole is constitutionally compliant. A proper interpretation of Article 27 (8) of the Constitution is one where each level of the judicial service adheres as closely as possible to the two thirds gender principle; where the most appropriate interpretation is one that recognizes and enjoins the state to address the inequalities suffered by women over time and enhances affirmative action policies to address past discrimination and that results in structural changes in selection processes that then ultimately lead to robust appointive processes so as to ensure compliance.[16]

On the final issue, the court took cognizance of the fact that National Gender and Equality Commission is a constitutionally established office by a dint of Article 59 (4) of the Constitution of Kenya 2010. Section 4 thereof gives it the status of a commission within the meaning of Chapter 15 of the Constitution.  The objects of such commissions include promoting constitutionalism, protecting the sovereignty of the people as well as securing the observance of the Constitution by all state organs. Similarly, the Judicial Service Commission is among the Chapter 15 Commissions with similar objects. The learned Judges observed that:

As independent Commissions they are not subject to the direction or control or any other person or authority. The structures within which each of these commissions operates is set out in statute, and nothing in those laws or in the Constitution suggests that the National Gender and Equality Commission can give binding advice to the Judicial Service Commission. We therefore find that the trial court rightly found that the National Gender and Equality Commission advisory opinion was not binding to the Judicial Service Commission.

The Court proceeded to give the final orders. The learned Judges had to relook at the order prayed by the appellant critically bearing in mind the developments that have taken place since the recruitments undertaken by the Judicial Service Commission in 2016. Thus, these were the findings of the court:

  1. The interpretation of Article 27 (6) and (8) of the Constitution is that there can be no more than four members of one gender in the Supreme Court.
  2. In 2016, the 1st respondent was required to take progressive steps to ensure that the two-thirds gender principle be attained in accordance with the decision of the Supreme Court Advisory Opinion No.2 of 2012.
  3. The recruitment of the 4th respondent (Justice Lenaola Isaac) was not unconstitutional.
  4. At this juncture, 12 years after the promulgation of the Constitution, there is a responsibility on the part of the Judicial Service Commission to ensure that in the exercise of its mandate of recruitment to all courts, the two-third gender principle is complied with.
  5. Advisory opinions given by the National Gender and Equality Commission to the Judicial Service Commission are not binding.

Did the court err?

In my view the courts, I find that the court made a fair view as it pertains to the issues raised by the appellant Adrian Kamotho. However, on one issue I disagree with the Court of Appeal decision. Gender inequality is as old as the Old Testament time. The Jews men in their prayers used to pray to thank God that they were born men and not women; In Kenya we see that before the British colonialists came, the society was still patriarchal. (Ruled by men)

African men made the decisions in society and set the rules that the community was to live by. This was through the council of elders that existed in most societies. Few women occupied public positions of power. The one common position was that of medicine-woman. Generally, the place of women was largely in the house and looking after the welfare of their homestead. Men on the other hand were generally their own masters. They dictated what was permissible and what was not. Men were the warriors of the community, decision-makers, and heads of families and in that capacity, they dictated.

Gender equality is a critical element in achieving decent work for all women and men, therefore for any effective social and institutional change that leads to sustainable development with equity and growth; all gender should be considered equally and given equal rights of participation. Gender equality refers to equal rights, responsibilities and opportunities that all persons should enjoy, regardless of whether one is born male or female.

As the court rightly stated, it cannot be understated that the rights envisaged under Article 27 of the Constitution, that is equality and non-discrimination are constitutional imperatives. This is fortified by Article 2(6) of the Constitution which allows for the recognition and adoption of relevant international and regional frameworks to which Kenya is a party into our laws.

As an illustration, it is widely accepted that the principle of non-discrimination is binding on all states. Both CEDAW and the Maputo Protocol prohibit discrimination against women. In particular, Article 2(1) (d) of the Maputo Protocol enjoins states parties to “take corrective and positive action in those areas where discrimination against women in law and in fact continues to exist,” while the CEDAW Committee, in General, Recommendation No. 28 on the core obligations of States parties, Article 2 of the CEDAW on the prohibition of discrimination requires that States recognize structural and historical patterns of discrimination and unequal power relationships between women and men. These issues must be taken into consideration by the state agencies including Judicial Service Commission.

Enough of that, I disagree with the decision that gender should take pre-eminence at the expense of merit. Prof James Thuo commenting on what it takes for one to be appointed as a judge postulates: ‘regarding an applicant’s legal and life experience, the Judicial Service Commission must consider the breadth of legal experience and the relevance of that experience to the position. The Commission must evaluate each applicant’s professional competence, including his or her: intellectual capacity; legal judgment; diligence; substance and procedural knowledge of the law; organizational and administrative skills and ability to work well with a variety of people. The Commission must also consider the applicant’s written and oral communication skills; an applicant’s integrity and the ability to understand the need to maintain propriety and appearance of propriety. The Commission must also consider the applicant’s propensity for fairness which can be demonstrated by the applicant’s ability to be impartial and a commitment to equal justice under the law, as well as an open mind and a capacity to decide under the law, regardless of conflicts with personal views. An applicant’s good judgment must also be considered by evaluating common sense demonstrated by a sound balance between knowledge and practical reality; specifically, a proven ability to resolve problems promptly and within the relevant legal constraints or principles’.

All these are things that Judicial Service Commission should take into consideration. The gender issue also must be considered. Generally, it is kind of a cocktail. From my end, gender principle should come after merit has been considered fully and settled. If not, we may end up having folks on the bench with no basic knowledge regarding performing their functions. Getting to the bench should be kind of wholly based on professional qualifications and experience. Gender should just come after merit has been assessed by the Commission. I agree with the Judicial Service Commission to the effect that the primary consideration should be merit and then all other things follow. Just like it was said by Jesus, ‘Seek ye the Kingdom and all others shall be added unto thee.’ In a similar manner, merit should be sought for first at all times and then gender principles to follow suit in quick succession.

Conclusion

Unlike typical liberal Constitutions, Kenya’s 2010 Constitution is transformative in character. Liberal Constitutions mostly seek to demarcate the mandates of key organs of the state.[17] Transformative constitutions on the other hand seek to bring large-scale egalitarian social, economic and political change.[18] Its interpretation and application, therefore, requires a value-centric approach that takes account of the historical, social, cultural, and political contexts of the country.[19] Gender representation falls squarely into these categories.[20] The two-thirds gender rule is provided for by the Kenya’s 2010 Constitution as a form of affirmative action.[21]

Globalization has made it compulsory for countries subscribing to international rules and guidelines to adopt and abide by the gender equity and gender equality rules. Kenya cannot afford to lag behind in this move of growth and development in this present era we are living in. All the arms of government have a task of ensuring that two-thirds gender rule is achieved, and the judiciary isn’t an exemption from that. The petition by Adrian Kamotho is highly welcomed and will be a point of reference and precedent in the future especially on the gender composition in the Supreme Court which is the highest court of the land. Nonetheless, I have reservations about the courts placing a gender card above meritocracy. If that is followed, I am not sure whether we will be attracting competent persons to the bench. Merit should take pre-eminence.


[1] Kipkogei Kemboi, Compliance of Two-Thirds Gender Principle: An Assessment of Kenya’s Judiciary (8th February 2021) Retrieved from https://ieakenya.or.ke/blog/compliance-of-two-thirds-gender-principle-an-assessment-of-kenyas-judiciary/ Accessed on 16th December 2022

[2] Charles Mwaura Kamau, ‘Principles of Constitutional Law (2017)’ Law Africa

[3] Ibid

[4] Supra

[5] Supra

[6] Luis Franceschi & PLO Lumumba, ‘The Constitution of Kenya: A Commentary ‘ (2nd Edition), Strathmore University Press, 2019

[7] Luis Franceschi & PLO Lumumba, ‘The Constitution of Kenya: A Commentary ‘ (2nd Edition), Strathmore University Press, 2019.

[8] Luis Franceschi & PLO Lumumba, ‘The Constitution of Kenya: A Commentary ‘ (2nd Edition), Strathmore University Press, 2019.

[9] Ruth Aura Odhiambo & Maurice Oduor, ‘Gender Equality in the Constitution of Kenya: Contemporary Readings (Edited by PLO Lumumba, M.K Mbondenyi & Steve Odero) Law Africa 2013.

[10] Ibid

[11] Ibid

[12] Ruth Aura Odhiambo & Maurice Oduor, ‘Gender Equality in the Constitution of Kenya: Contemporary Readings (Edited by PLO Lumumba, M.K Mbondenyi & Steve Odero) Law Africa 2013

[13] Federation of Women Lawyers Kenya (FIDA-K) & 5 Others V Attorney General & Another [2011] eKLR

[14] Federation of Women Lawyers Kenya (FIDA-K) & 5 Others V Attorney General & Another [2011] eKLR

[15] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR,

[16] Sandra Fredman, Substantive Equality revisited, International Journal of Constitutional Law, Volume 14, Issue 3, July 2016 Pages 712-738

[17] Thiankolu M, ‘How Kenya courted a constitutional crisis over parliament’s failure to meet gender quotas’ The Conversation, 1 October 2020 – < https://theconversation.com/how-kenya-courted-a-constitutional-crisis-overparliaments-failure-to-meet-gender-quotas-147145>  on 16th December 2022

[18] Adawo L, Gikonyo L, Kudu R and Mutoro O, ‘History of feminism in Kenya’ Nawey.net, 2011, 11

[19] Nzomo M, ‘Impacts of women in political leadership in Kenya: struggle for participation in governance through affirmative action’ University of Nairobi Institute for Diplomacy and International Studies, 2014, 2

[20] Ibid

[21] Nzomo M, ‘Impacts of women in political leadership in Kenya: struggle for participation in governance through affirmative action’ University of Nairobi Institute for Diplomacy and International Studies, 2014, 2

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He is a law student at University of Nairobi, Parklands Campus.