African Woman and Child Feature Service

It was a disappointing and dark day for women in Kenya as the High Court, sitting as a constitutional court dismissed the petition for an injunction by Fida stopping the swearing in of five Supreme Court judges as unreasonable and misguided.

The court was fully packed with hundreds of women activists and members of different civil societies who attentively listened to the three bench judges comprising Justices John Mwera, Mohamed Wasame and Philomena Mwilu.

Patriarchy seemed to rear its ugly head in Court as the judges declared that Affirmative Action was not meant just for women lawyers but that it also took into consideration other disadvantaged members of the community.

Women were warned in the ruling that affirmative action was not a preserve of the women but that there was a variety of disadvantaged Kenyans, among them the disabled and boys who had no access to education, the poor and landless, and those who lacked proper housing.

Lawyer Paul Muite, holding brief for the Attorney General made a light joke of the whole ruling saying that Fida was asking for a temporary injunction pending an appeal because he was aware this would draw in a lot of funding from donors - a remark that was not taken to kindly by Fida Counsel Elisha Ongoya.

The judgement insinuated that women down in the villages had different problems from those in Nairobi and it was likely that the women in the city would most likely take advantage of affirmation action to enhance their careers at the expense of other more deserving cases.

“Critics argue that those who benefit are rarely those who suffered historical injustices or discrimination. The affirmative concept displaces hard work on merit and those who spent long hours honing their skills,” Justice Mohamed Wasame said.

The judges said that there was no reason why a male judge who had struggled in hardship areas like Turkana, Pokot, Maasailand and other disadvantaged areas should be displaced by a female judge from the more advantaged areas of Western and Central Kenya.

In explaining their version of affirmative action, the judges declared that Affirmative Action was a compensatory remedy as a redress for the past wrongs. They said the minority make up history that places them at an unfair advantage.

“Critics of the affirmative action argue that those who benefit are rarely those who suffered. If the affirmative action is not interpreted correctly it will fail to reward the recipients for the common good and wider interest of the society in matters of ethnicity, race class, and disadvantaged minority to position of leadership,” read Lady Justice Philemon Mwilu.

Noting that judicial appointments are not meant for every Tom, Dick and Harry, Justice Mwilu observed that anyone appointed to be a Supreme Court Judge must have attended Law School and had the experience and expertise and the legal bias to serve the public and it was not just a matter of appointing less advantaged members of the society,” Mwilu said.

The judges in their ruling noted that “Rights are not absolute. The ruling noted inequality of treatment does not mean unequal protection.”

The court ruled that the Judicial Service Commission complied in performing its functions according to the Constitution according to Article 27 of the Constitution.

“The affirmative action may be used to reward already advantaged members of the society. The state must put programmes and policies for those unable to speak for themselves especially in the village and cities within a flexible time frame of up to five years, ”said Justice John Mwera.

The judges noted that they did not find any deliberate attempt by the Judicial Service Commission to deny women their rights but that the Commission acted within its mandate in the appointment of the Supreme Court Judges.

“We cannot prescribe medicine for symptoms of which we do not know the cause. The JSC appointment should be made on merit and must reflect the diversity of our people. JSC did not fail to act under Article 27 but acted within the law. The interviews were in accordance with the provisions of the act,” Justice Mwera said. He said Article 27 does not address a duty to JSC on how to administer its functions.

Justice Mwera caused laughter in court when he argued that the nature of the petition in supporting two-third gender was rich noble and was worth emulating and practising. Said Mwera, “the women have argued their case impressively and if I was a professor issuing grades, I would have graduated them with a first class Honours,” a patronising Mwera told the women.

Fida has now moved to the Court of Appeal, even as the Constitutional Court gives the Supreme Court the go ahead to proceed with its work. The appointed Supreme Court judges include Jackton Ojwang’, Ibrahim Mohammed, Phillip Tunoi, Dr Smokin Wanjala and Ms Njoki Ndungu.

Article 27 of the new Constitution calls for lack of discrimination against women and prescribes a two-third of gender representation in elective posts. Fida had protested that the JSC failed in mathematical mandate to give women 30 per cent of their elective posts in the Supreme Court.