Source: All Africa
President Kibaki can now go ahead and swear-in five judges of the Supreme Court following a landmark ruling that rejected a case lodged by women lobby groups challenging their appointments.
The groups suffered double blow after the court refused to block the swearing-in of the judges pending hearing of an appeal they intend to file against yesterday's verdict.
Moments after the case was dismissed, the lobby groups attempted to stop the judges from being sworn-in, but this plea was rejected. While dismissing the case, a three judge bench gave JSC a clean bill of health saying it short listed, conducted interviews and recommended the appointment of the judges in accordance with the law.
The groups had argued that the JSC nominations do not meet the one third gender balance requirement as stipulated by the constitution. They wanted the court to nullify the appointments of Justice Philip Tunoi, Justice Jackton Boma Ojwang', Justice Mohamed Ibrahim, Dr Smokin Wanjala and Njoki Ndung'u on claims that JSC breached the constitution when it recommended them for appointment to President Mwai Kibaki.
It was their contention that the constitution specify that not more that two-thirds of elective and appointive positions shall be of the same gender. However, judges John Mwera, Mohammed Warsame and Philomena Mwilu said the claims were misconceived and unfounded and termed the case "as a missile that was fired before first ascertaining the target".
It was their view, that it is the responsibility of the government to establish policies and proggrammes that can provide remedy to people whose rights or freedoms have been infringed.
They said even though they agree judicial appointments should be based on merits and reflects diversity, the groups failed to show how the commission in exercise of its functions failed to comply with the constitution. "Had we been supplied with evidential disability suffered or inflicted by JSC upon the female gender, we would have crossed the river and grabbed JSC by the neck with the words that you should never tamper with the rights of our mothers, daughters, sisters aunts and nieces", they said.
They added that "this court cannot act like an octopus stretching its eight tentacles here and there grasping powers not constitutionally spared for us, to grant such orders would be undoubtedly be encroaching upon policy and legislation undertaking which are not reverenced in the judiciary.
The case had been filed by the Federation of Women Lawyers Kenya (Fida), Centre for Rights Education and Awareness (Creaw), the League of Kenya Women Voters, Women in Law and Development in Africa, Caucus for Women Leadership, and Coalition on Violence against Women (Covaw).