FIDA case against Supreme Court thrown out

Written By:Glena Nyamwaya,    Posted: Thu, Aug 25, 2011

The court dismissed the case on grounds that the appointment of the judges had not breached the Constitution in any way The High Court Thursday dismissed a lawsuit filed by the Federation of Women Lawyers in Kenya (FIDA) to stop the swearing in of five judges appointed to the Supreme Court. In the ruling, the court said that the appointment of the five had not breached the Constitutional requirements in any way as alleged by FIDA. FIDA and five other women lobby groups moved to court on the 17th of June following the Judicial Service Commission's (JSC) nomination of the five judges to serve in the Supreme Court, arguing that the nominations did not reflect gender balance. The five judges include Justice Philip Tunoi, Justice Jackton Ojwang, Justice Ibrahim Mohammed, Dr Smokin Wanjala and Ms Njoki Ndung'u. President Kibaki signed a gazette notice appointing the five on the 16th of June.   This means that the five can now be sworn in to office as the first ever judges to the Supreme Court that will see Chief Justice Dr. Willy Mutunga serve as President and his deputy Nancy Barasa as Vice President of the court. Hurdles in the lawsuit The case encountered several hurdles since kicking off on the 19th of July. In the petition, FIDA submitted that the Judicial Service Commission (JSC) breached the constitution by appointing one lady out of four men. The case had stalled after FIDA filed two applications citing conflicts of interest on one of the judges. But the two applications were dismissed and the judges ruled that the matter be heard on a daily basis to expedite it as directed by the Chief Justice. FIDA lawyer Judy Thongori argued that the Judicial Service Commission contravened article 27 of the constitution that barred any gender holding more than two thirds on positions in public bodies. On the 27th of June, High Court judge Jeane Gacheche referred the case to Mutunga who was expected to appoint a three judge bench to hear the case. Judge Jeanne Gacheche had before this decision 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. 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.