FIDA's case on nominations referred to Chief Justice

Written By:Diana Okwemo/Dzuya Walter/Micheal Gichuki,    Posted: Mon, Jun 27, 2011

The chief justice is expected to appoint a three judge bench to hear the case The case challenging the appointment of five judges to the Supreme court has been referred to the Chief Justice. High Court judge Jeane Gacheche referred the case by the Federation of Women Lawyers Kenya chapter (FIDA) to the chief justice Willy Mutunga who is now expected to appoint a three judge bench to hear the case. Judge Jeanne Gacheche had a fortnight ago issued a conservatory order restraining any state officer or organ from going on with the process until the dispute is resolved. FIDA and five other women lobby groups moved to court to block the swearing in ceremony of the five judges on grounds that their nomination was in contravention of the Constitution of Kenya, 2010 and the Judicial Service Act, 2011   The groups argued that the nominations did not reflect gender balance as provided for in the constitution that requires no more than two thirds of the same gender in public appointments. Those nominated by the Judicial Service Commission are Judges Philip Tunoi, Jackton Boma Ojwang, Ibrahim Mohammed and lawyers Smokin Wanjala and Njoki Ndungu. The matter which came up for hearing Monday before judge Jean Gacheche failed to kick off after lawyer Paul Muite representing the Judicial service Commission told the court that  the matter raised substantial questions.   Muite claimed that under Article 166 SUB SECTION 4 of the constitution, the matter has to be heard by three judges. Judge Jeanne Gacheche referred the file to the chief justice for directions. The Judicial Service Commission had recommended the names of the five appointees to the President for appointment as Supreme Court judges. The president later gazetted the names and the judges were due to be sworn in on Monday last week before the high court issued restraining orders pending the hearing and determination of the petition.   Last week the Executive Director of FIDA Kenya, Grace Maingi, expressed FIDA's disappointment with the JSC's disregard for the Judicial Service Act 2011 that requires a third of the nominees be of either gender. "The JSC has failed Kenyans in promoting gender equality as prescribed in Article 172 (2) (b) and demand the commission to withdraw the list of nominees before the president appoints them," she said. She reiterated that there is still time for the commission to review the position it has taken and consider gender equality. Maingi said that women had been deliberately sidelined for positions in key institution, noting that no single woman was serving in the Court of Appeal. "The fact that women are serving as High Court judges and Magistrates proves that they are capable, we should move away from the patriarchal mentality and give women a fair play," she added. Kenya lags behind Tanzania and Uganda, in the appointment of women in the high judicial service positions. Uganda has two women in the Supreme Court and three in the Court of Appeal, while Tanzania has three women in the Court of Appeal. Also present was the Chief Executive Officer, FIDA Uganda, Dr. Maria Nassali and Executive Director, Tanzania Women Lawyers Association , Annmarie Marenjina Nkelame.