General
Women's groups in Kenya are calling for the government to appoint at least one woman to fill the country's top judicial positions. The Kenyan president in late January announced nominations for the positions, but withdrew the names following a ruling that the process was unconstitutional. Two commissions are now recruiting candidates for the positions.
The executive director of the Federation of Women Lawyers in Kenya, Grace Maingi, is quick to point out the lack of women in the country's upper legal echelons.
"If you look at the history of Kenya with regards to the judiciary and gender disparities within the judiciary, we have never had a female chief justice since 1963 [independence], and the current Court of Appeal does not have a female judicial officer,” Maingi said. “So there is this glass ceiling that is preventing women from being able to move into high-ranking offices within the judiciary."
Chief Justice is one of three key legal posts that need to be filled in the coming months. Also to be named is Controller of Budget.
According to Kenya's new constitution, appointed and elected positions must consist of at least one-third of either gender.
At the lower magistrate level, women are well represented. Nine out of 13 judges for Nairobi listed on the judiciary website are women. In High Court, the highest legal office that women have reached, the ratio is lower, with 18 of 44 judges listed on the website being women. Under the new constitution, Kenya is in the process of creating a Supreme Court.
FIDA's Maingi describes what should happen if a woman is not appointed to be Chief Justice, the Attorney General, or the Director of Public Prosecutions.
"Even if they decide to appoint a female deputy chief justice, we will then be calling for a bare minimum of two-thirds female Supreme Court judges and then a remedying of the Court of Appeal, because then the Judicial Service Commission has to make sure that the judiciary complies with the new constitution," she added.
In January, President Mwai Kibaki put forth names to fill the key posts, a move that drew widespread criticism. Eight women's groups challenged the nominations in High Court, calling the appointments unconstitutional and discriminatory against women.
The High Court ruled in the groups' favor, and soon after, Kibaki withdrew the names. In line with the constitution, the Judicial Service Commission will recruit the Chief Justice, while the Public Service Commission will advertise for the Director of Public Prosecutions and Controller of the Budget.
President Kibaki and Prime Minister Raila Odinga are discussing the Attorney General's post.
Lawyer Judy Thongori, one of the advocates involved in the High Court case, says she and her colleagues are watching events very closely.
"Behind the scenes we have been involved in encouraging women to apply and encouraging women to polish up their CVs,” said Thongori. “That is a starting point. We will be looking at the process to confirm that it has facilitated the participation of both men and women."
She explains that not only should at least one of the top three legal posts be filled by a woman, but a woman deputy should be appointed in the case where a man gets the position or a male deputy if a woman is appointed. Thongori says the Attorney General's position should be filled through competition.
FIDA executive director Grace Maingi estimates that at least 100 women would qualify for the key posts.
Women officials in the legal system say they experience an overriding patriarchal attitude that women are unable to serve in demanding and important offices, leadership roles are not appropriate for women, and that there is a lot of political interference even with the selection of judicial officers.
"There is something about our system - especially the way you are taken in through those committees and they are bringing up some dirt or other on you that may not even relevant to the job that makes people cringe, and you may not have good people or the best people applying," Thongori added.
In general, Kenyan women have had a tough time in the legal system. Until the new constitution was enacted last year, women had few rights in the areas of inheritance, marriage, land ownership, domestic violence, and others.
Often they could not access the courts, and when they did, their rights frequently were not upheld.
Advocates Thongori and Maingi say they think women in the key posts will more likely address these and other historical injustices.
"If we have a judicial officer who is a woman who is gender sensitive, she will be able to make sure that we do have policies that enable women to access justice and enable marginalized groups to access justice in a much better and a faster manner," said Maingi.
Many are heartened by the successful challenging of the president's nominations and the filling of these posts through competition.
Kenya Institute for Public Policy Research and Analysis programs coordinator Eric Aligula says he thinks these developments show that people are using the constitution to ensure that the rule of law prevails.
He says appointing women for a top job such as Chief Justice is part of this process.
"I think it would be positive if you had a woman being named a C.J. (Chief Justice), but like I said before, the primary consideration should be merit,” Aligula said. “If there is a woman candidate who meets or even surpasses the qualifications I think they should be appointed. It works out pretty well for the country in the sense that you would be bringing (in) a group of the country that was not very actively involved in the running of the affairs of the country into the mainstream, so that is a good thing."
A process he says is good for the whole country.