NAIROBI, Kenya, Jun 16 – Kenyans will now have to wait a little bit longer before the Supreme Court begins work after the High Court halted the judges’ swearing in ceremony that was slated for Monday.
Justice Jean Gacheche issued the order after six women’s organisations sought the court’s intervention alleging breaches of the Constitution with regard to gender equity and equality.
The women’s organisations led by the Federation of Women Lawyers (FIDA) Kenya, claim that the nominations of the five judges was not gender sensitive and want them stopped form assuming office until the anomaly is rectified.
Other organisations that moved to court are the Centre for Rights, Education and Awareness, The League of Kenya Women Voters, Women in Law and Development in Africa, Caucus for Women Leadership and the Coalition on Violence against Women (COVAW).
On Thursday, President Kibaki gazetted the appointments of Justices Philip Tunoi, Jackton Ojwang, Mohammed Ibrahim and lawyers Dr Smokin Wanjala and Njoki Ndung’u to the coveted posts of Judges of the first ever Supreme Court in Kenya.
The President also formally appointed Chief Justice Willy Mutunga and his Deputy Nancy Baraza together with Director of Public Prosecutions Keriako Tobiko.
The women lobbyists claim that the Judicial Service Commission acted in disregard of the Constitution that require that no more than two thirds of state bodies shall be of the same gender.
“The Constitution at Article 27 further requires that in addition to the above measures, the State shall take legislative and other measures to implement the principle that no more than two thirds of the members of elective and appointive bodies shall be of the same gender.”
“In the past, women as a group have been discriminated against and have been underrepresented in top judicial institutions and as at the time of the impugned recommendations, there was no woman in the Kenya Court of Appeal,” the petition reads in part.
However, a number of lawyers have disagreed with the court’s decision.
The lawyers who spoke on condition of anonymity argue that following the publication of Special Gazette Notice No 6656, President Mwai Kibaki’s appointment has assumed the full force of the law and as such the process can only be reversed through the removal of the judges as stipulated in the Constitution.
According to the Constitution, the Judges of the Supreme Court can only be removed through a tribunal appointed the President on the recommendation of the Judicial Service Commission.
The law states: A judge of a superior court may be removed from office only on the grounds of: “(a) Inability to perform functions of office arising from mental or physical incapacity, (b) breach of code of conduct prescribed for judges or the superior courts by an Act of Parliament (c) bankruptcy (d) incompetence or (e)gross misconduct or misbehaviour.”
The High Court has in the meantime ordered the petitioners in the case to serve the Attorney General and the JSC with the suit papers.
The case has been listed for hearing on June 27.
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