Federation of Women Lawyers Kenya (FIDA) vs Attorney General (2011) is a case on gender representation of judges appointed to the Supreme Court. It is also a case on implementation of the two thirds gender rule provided under Article 27 of the constitution.
On 15th June 2011, the Judicial Service Commission (JSC) recommended 5 persons to be judges of the Supreme Court. Of the 5 recommended, 4 were men and 1 was a woman.
This was after the JSC had previously recommended 1 man and 1 woman for the office of the Chief Justice and Deputy Chief Justice respectively. The two were endorsed to the President and the positions were subject to parliamentary approval.
On 16th June 2011, the appointment of the five judges was effected through special Gazette No.6656 by the President of the Republic of Kenya. The gazette notice stated as follows;
“In exercise of the powers conferred by Article 166(1) of the Constitution, I, Mwai Kibaki, President and Commander-in-chief of the Kenya Defence Forces, appoint-
Philip Kiptoo Tunoi
Jackton Boma Ojwang’(Prof)
Mohamed Khadhar Ibrahim
Smokin Wanjala (Dr.)
Njoki Ndung’u Susanna (Ms.),
To be Judges of the Supreme Court of Kenya.”
The Federation of Women Lawyers alleged that JSC violated the Constitution and the fundamental rights and freedoms of women by making those recommendations. That JSC did not take into account the correct arithmetic of the constitutional requirements on gender equality.
The Supreme Court consists of 7 judges. The Chief Justice, Deputy Chief Justice and 5 other judges. In order to comply with the Constitutional requirements, JSC was under a duty to ensure that no gender fell below 33.3% in representation.
Following the two thirds (2/3) gender rule, the Supreme court was to have an estimated 3 women and 4 men. This is because, 1/3 of 7 is 2.3 and 2/3 of 7 is 4.7. Therefore JSC ought to have rounded 2.3 to 3 and 4.7 ought to have been reduced to 4. This would have resulted in a Constitutionally compliant ratio.
The federation of women lawyers raised an issue on the gender composition in that the commission had not successfully implemented the gender provisions stated by the constitution of Kenya. The percentage of females was rated to 28.6% whereas that of their male counterparts being 71.4%. This was in breach of Article 27.
Issues in the case of Federation of Women Lawyers Kenya (FIDA) vs Attorney General (2011)
- Whether the JSC violated the provisions of Article 27 of the Constitution in making recommendations
- Whether the court had jurisdiction to issue orders sought by the petitioners without contravening the provisions of Article 168 of the Constitution.
The Petitioners prayed for the following orders;
- A declaration that the recommendation of people of more than two-thirds or 66.7 percent of the male gender and less than one-third or 33.3 percent of the female gender for approval and or eventual appointment to the office of Judges of the Supreme Court is gender insensitive, discriminatory against women, disrespectful of women and contrary to articles 27, 2, 3, 10, 163, 166, 172(2) (b), 248 and 249 of the Constitution of the Republic of Kenya and is therefore null and void.
- An order restraining any further purported appointments of Judges of the Supreme Court pursuant to the recommendations made by the Judicial Service Commission on 15.06.2011.
- Costs of this Petition.
- Or any other orders that the honorable court deemed just.
Submissions by the Respondents
The respondents contended that the JSC recommended the judges on 15th June 2011. After consultations with the Prime Minister, the President accepted the recommendations and gazetted the appointments on 16th June 2011.
The JSC argued that the process of appointing the judges was nearly complete in accordance with Article 166. Therefore , that Judges of the Supreme Court having been validly and lawfully appointed as provided for in the Constitution, can only be removed in accordance with Articles 167(1) and 168 of the Constitution.
Articles 167 and 168 clearly stipulate the process of removing a judge from office. It is through a tribunal, not by a constitutional petition.
Mr. Muite, counsel for the respondents, rendered the petition unconstitutional and finally that the high court had no jurisdiction over the matter.
Mr. Ogoya of the petitioners referred to article 165 which gave the high court unlimited jurisdiction to listen and determine any matter related to the interpretation of the constitution. He opined that the two issues at hand in regard to article 27(8) and 74 where of utmost important value.
The court findings where that the judicial authority under a tribunal established under article 168 was different from the one exercised under article 165 giving the high court unlimited jurisdiction. The tribunal would only take stand in issues of the personal conduct of the judge e.g. gross misconduct. The court concluded that it has jurisdiction to listen to the petition.
In regard to the gender issue according to article 27(8), it was the view of the court that values bestowed on a democratic society must be promoted in the interpretation of the bill of rights, that the interpretation should take consideration of all the social perceptions of the Kenyan people. It noted that the constitution could be interpreted in a linear or direct manner whereas other times it may be interpreted broadly. It was held that equality does not oppose classification done under legislation and its reasonableness would depend on the purpose by which it is done. For classification to be permissible, it must be just and reasonable and can’t be made arbitrarily where it is only justifiable by reading the constitution as a whole.
The court distinguished between equality and discrimination where the classification should be founded on logical differentiation and must be balanced to the principle being sought after. The affirmative action used (positive discrimination) was intended to equip the sidelined minority despite that it was not supposed to protect special people for any group within the society. The court was of the view that mere discrimination did not amount intrinsically to discrimination. It was of the view that article 27 did not bar the JSC from undertaking its mandate as stipulated by the constitution, and that appointments cannot be done by mathematical representation rather by reason and affirmative differentiation as it was not the courts role to pronounce policy or to legislate. The petition was dismissed.
“…we do not regard the women who were not considered for the Supreme Court as less deserving than those who were recommended and appointed. It is not their failure but because JSC exercised a legitimate discretion within the parameters of the law in favour of those who performed better than them.”
High Court of Kenya at Nairobi
JW Mwera, M Warsame & PM Mwilu