African Woman and Child Feature Service

As Attorney General (AG) Amos Wako prepares to leave office, women are keenly following reforms within the Judiciary.

After the appointment of Dr Willy Mutunga, Nancy Baraza and Keriako Tobiko as Chief Justice, Deputy Chief Justice and Director of Public Prosecutor respectively, all eyes are now turned to the Attorney General position.

Amos Wako has been at the helm of this position for 30 years and after three decades in the helm, and with the new Constitution calling for not more than two-thirds majority of the same gender in positions, women are of the view that it is now important that one of them heads the State Law Office.

The new Attorney General must be appointed by end of August and women must come out in large numbers to apply for the post to take their chances higher.

According to Grace Maingi, Executive Director Federation of Women Lawyers (FIDA) there are a number of women who are qualified to take up the post of the Attorney General.

“Several qualified women are working within the State Law Office and in private practice,” she says.

Maingi notes that given the rate at which women are today applying for jobs as witnessed in the previous past, it is worth noting that women are not shying away from these positions.

FIDA and other like minded organisations are out to ensure that Kenya has its first woman Attorney General.

Even as women demand that affirmative action as entrenched in the Constitution be ratified, there are those who believe that merit must be granted its rightful place.

According to a Kisumu lawyer Janet Mangera, the position of Attorney General should go to a woman on based on qualification and merit.

She observes: “Most qualified women have in the past been relegated despite being qualified for high profile state jobs.”

She also reiterated that affirmative action must be enacted to the letter and spirit of the new law.

Mangera’s sentiments are echoed by Susan Owino, a representative of the Migori County Women’s Caucus.

According to Owino, women will “not be going to ride on men’s back but must get the job on merit”.

“Kenya needs a change by having a woman Attorney General now rather than later to help hasten the new constitutional dispensation,” says Owino.

However, she told women to take advantage of the new law and seek positions by applying for advertised jobs.

“We can only secure the AG’s post and several others if we become more aggressive in taking up offices that have been created for us under the Constitution which demands a one-third gender balance,” Owino explains.

The war to gender equality in public offices is far from over as women meet challenges towards constitutionalising of the new law. In January the High Court blocked President Kibaki’s nominations of judicial appointees to the post of Chief Justice, Attorney General, Director of Public Prosecutions and Comptroller of Budget. Through a suit filed by women’s organisations that included FIDA, Centre for Rights Awareness and Education (CREAW) among others, the High Court through Justice Daniel Musanga ruled that the President had breached the Constitution by failing to include gender equality in his nominations.

The High Court order saw the positions later advertised and a good number of women were among those who applied and were shortlisted. There were two women shortlisted to the position of Chief Justice for interviews. Justice Mary Angawa and Kalpan Rawal made it to this list that saw women and men grilled in public before the final appointments were made.

Out of the 10 shortlisted for the position of Deputy Chief Justice, eight women were nominated. Nancy Baraza was later appointed Deputy Chief Justice.

In the final submissions after interviews were conducted for the position of Deputy Public Prosecutor, one woman Dorcas Oduor made it second to the winning candidate, Keriako Tobiko.

These women who are highly qualified to have made it to shortlisting of these prestigious posts could in effect qualify to make it for the position of Attorney General.

It is not only the Judiciary that has seen gender inequality in the aftermath. The President also recently made major changes in the Defence Force in appointments that did not have a single woman take a slot in the major uniformed forces.

It has been argued among many circles that while affirmative action means having men and women, matters security are best left to men.

However, those putting up this argument have not taken into consideration the fact that women have not made it to the top echelons of the Defence department because they were initially discriminated against.

The same argument seems to be following appointments to the Judiciary that has seen two men already appointed to the positions of Chief Justice and Director of Public Prosecutions.

Recently FIDA moved to Court over the nominees for the Supreme Court saying the Judicial Service Commission failed to meet the one-third gender balance threshold. They had two women out of a total seven.

The organisation wants to have an extra woman nominated to the Court so as to have three women and four men in the Supreme Court. The Chief Justice is the president of the Supreme Court and the Deputy Chief Justice is the Vice President.

Kenyans hope that those charged with implementing the Constitution in making new appointments in respect to the new law will take into consideration the fact that it does not need a court to have affirmative action enacted.

As Kenyans wait anxiously for President Kibaki and Prime Minister Raila Odinga to agree on the appointment of the Attorney General women are saying that it must not be lost to the two principals and Kenyans at large that there is a bevy of women who are qualified to be Kenya’s next Attorney General.

Water and Irrigation Minister Charity Ngilu is among women leaders who have voiced their position calling for the appointment of a female Attorney General.

According to Ngilu, women have for long been overlooked in certain appointments. She blames this factor on poor representation of women in certain government offices.

“Most high offices in the country are occupied by men who have no data and knowledge of professional women hence leading to skewed appointments whenever an opportunity arises,” she says.

The Global Women Summit Chief Executive Officer Paula Fellingham challenges women to stop being lax in competing for the positions arguing that positions of leadership will never be handed over to them. She observes that women often take a back seat when it comes to such challenging processes instead of competing for them.

“Sometimes women complain that they are not happy with how things are but then they are not doing enough to make these changes happen. If things are not okay, what do you want changed?” she asks.

These and other suggestions form the basis of arguments being put forward as women demand more numbers in appointments to positions of leadership and decision making.

However, according to Rosemary Okello, Executive Director African Woman and Child the Government should take stock of women and ensure that they apply for these positions.

“The Government should analyse the main reasons why women shied away from these posts and strive to address them,” explains Okello.

Women have in recent pasts been criticised for their reluctance to take up these positions. The vetting of judges has, in particular, been delayed after women failed to apply to sit on the board that will carry out the exercise.

The Interim Independent Electoral Commission has also registered its concern surrounding the one-third gender representation balance saying it was not sure how to meet the quota after next year’s elections. “I think such concerns are neither here nor there but we know that come 2012 we will see a different change in representation. Everyone is asking whether we will be able to marshal the numbers and we are saying yes we will,” Okello argues.

However, speaking to women’s coalition of the G-10, Professor of Law Patricia Mbote says sharing power with women is not going to come easily to men. “People who have enjoyed the rights do not give them up easily. There is a lot of pressure on women now to address the issue of why women have not had a go at taking up these appointments.”

Mbote reiterates: “The first legal and constitutional basis for affirmative action measures are to redress past patterns of discrimination in Kenya.”

She observes that the challenge women face is in lifting the ‘cultural exemption’ that has operated since the independence constitution.

“The new Constitution through entrenchment of affirmative action is opening up areas that were previously shielded from the application of constitutional principles of equality and non-discrimination to constitutional scrutiny,” explains Mbote.

She cautions: “Rights will not come to women; women must seize them. Those that have previously enjoyed rights do not welcome new claimants of rights.

Mbote advies women to stop concentrating in areas where women can compete. “What happens when women cannot compete because of past injustices or structural constraints? There is need to strategise to ensure that gains are not lost because there are no women applicants. Craft a plan of action to marshal all resources and direct them towards actualising gains,” she recommends.

Mbote reiterates that women must campaign to emphasise the general constitutional principle that no one gender should occupy over two-thirds of the positions on any public body.

Speaking to the G-10 Senior Counsel Stephen Mwenesi said women must go beyond the margins of law to ensure gender equality.

He reiterated: “To ensure an effective where we get leadership for men and women in equal opportunity, G-10 must not only engage in court but go out in the public arena.”

Reinforcing the sentiments, Mbote says women must interrogate what exists for them. “Beyond the Constitution, what other legal framework is there for affirmative action?” she posed.

The challenge, Mbote advices, is for women to analyse their own strategies as individuals as well as organisations.

It is only through such fights that women may live to see a woman occupying the seat of the Attorney General.

This article was originally published in the Kenyan Woman Issue 20