African Woman and Child Feature Service

Gender agenda bears fruit as Nancy Barasa becomes first Kenyan Woman Deputy Chief Justice

"If elections were called today, are we prepared as women to go to the polls?" This is the key question that worries Ms Nancy Barasa."The jobs are too many but the women are few. Identify something for yourself. What do you want to be?" That is her victory call to women with regard to the new constitution that gives women a 30 per cent chance in governance. Such is her passion about women's rights that the Judicial Service Commission recently questioned her about her activism.

Yet underneath her strong activism is a humble, friendly, down to earth and co-operative woman who has no hung ups about appointments and is willing to give an interview to the media on the spot.

Landmark appointment

Nancy Makhoha Barasa becomes the first Kenyan woman to serve as the Deputy Chief Justice. This is a landmark appointment and a plus for women and governance in Kenya. Never in the history of the country had such a rank been envisaged or even imagined for a woman. Since independence, Kenya has been a "man's club" society.

Former Justice Minister Martha Karua describes the Government as an all male Sacco in which women are treated with hostility and contempt. But with the promulgation of the new constitution apportioning women 30 per cent of all Government posts, the sky is the limit for Kenyan women.

Some critics have described the bare-knuckled approach of a section of the panelists as provocative even demeaning to the status of interviewees. Others have however welcomed the public nature of the process, as free and fair.

Nancy Barasa’s journey to the judiciary was not a rosy one having had to pass through a rigorous vetting process. She nonetheless left many in awe with her quick wit and vast understanding of the issues at hand.

Out of 18 applicants shortlisted for the Deputy Chief Justice position, Barasa made it to a strong number two. The Judicial Service Commissions held the interviews between May 3 and May 12, 2011 and forwarded her name to the President and the Prime Minister for approval. They approved leaving her at the hands of the Constitutional Implementation Oversight Committee who voted unanimously for her and the leaving her fate to parliament who again endorsed.

Controversy

A former commissioner with the Constitution of Kenya Review Commission (CKRC) and currently a lecturer of law at Kenyatta University, Barasa handled herself with dignity and decorum during the interview remaining calm as a barrage of questions were directed towards her. Particularly on two fronts, her past as an activist and her present regarding her PhD thesis on homosexuality and the Law.

The thesis aroused curiosity, with the commission wondering whether it was meant to justify homosexuality. But Barasa said her decision to pursue the topic was borne out of a curiosity she developed when she led the team on human rights at the CKRK in collecting views from Kenyans to develop the chapter on the topic.

The thesis raised a storm with some politicians rejecting the appointment on that account, it is worth noting that only recently, Principals and Head Teachers lamented that lesbianism was rife in girls' boarding schools and needed urgent attention as it was already out of hand. In the neighboring Uganda, the topic was so hot and parliament postponed discussion of the bill that was to approve the hanging of gays and lesbians.

On activism; "Yes, activism makes you challenge the status quo, it is a positive value. In India, for example through judicial activism, they managed to develop a pro-people jurisprudence. I would want to call it innovation of the courts." She recommended a spice of activism, which she noted had been missing from the judiciary.

The lawyer, who would be completing her PhD in law, said there had been a strong opposition from the judiciary against reforms in the institution. She decried the Judiciary for resisting reform despite the cry of Kenyans.

Barasa recalled that while she was at CKRC, two senior members of the Judiciary had through an advocate filed a suit opposing the inclusion of the judicial chapter in the draft constitution or even talking of the reforms in the institution. Questioned by Commissioner Abdulahi Ahmednasir on what needs to be done to the judges who instituted the cases to block constitutional review, Barasa said it would be upon the JSC to determine what actions to take against them.

Barasa told the panel that despite the 2003 "radical surgery" in the Judiciary, corruption worsened thereafter.

Requirement for Chief Justice required one who can provide leadership to the Judiciary both jurisprudentially and managerially. He or she must be able to reform the judiciary.

Above that candidates must have an impeccable record, superb credentials and whose integrity is beyond reproach.

"We are looking for natural leaders who will provide vision and guidance to both judiciary and the country," emphasized JSC chairperson Christine Mango.

To confirm just how rotten the Judiciary was, one of the candidates Lady Justice Mary Ang’awa confessed to the JSC that bribery is rampant in the courts and its form so varied that it even includes kilos of meat delivered at a magistrate court's door step as early as 6am.Ang'awa described corruption as a trend that replicated itself in all court corridors in the country. She said that some lawyers are known to delay cases for 17 years as remandees rot in jail.

Tribute

In a glowing tribute to Barasa, one writer described her as an "indefatigable defender of the poor and democracy activist with the necessary expertise and technical know-how to navigate the reforms and ensure that the judiciary is independent.

Each candidate was asked what their agenda for the judiciary would be in the first 100 days in office. Barasa says she would seek public involvement, initiate training on cultural values and set a mechanism to deal with advocates, who she accuses of perpetuating corruption in the courts.

"It is the lawyers who encourage corruption in the Judiciary. We should not blame the judicial officers alone because it takes two to tango," she said.

Other candidates for the Chief Justice position were Judges Joseph Nyamu, Riaga Omollo, Samuel Bosire, Kalpana Rawal, Paul Kihara, Msagha Mbogoli and Mary Ang'awa and Judge Lee Muthoga of International Criminal Tribunal in Rwanda.

Barasa is a founder of International Federation of Women Lawyers (Fida). She has practiced law for 30 years. Earlier this year she was elected the chairperson of the Media Council of Kenya Ethics and Commission. She served in the original Yash Pal Ghai's Constitution of Kenya Review Commission which produced the Bomas Draft - which served as one of the reference drafts for the new constitution.

Members of the JSC include Christine Mango, Amos Wako, Ahmednassir Abdullahi, Justice Isaac Lenaola, Public Service Commission Chairman Titus Gateere, deputy Court Registrar Emily Ominde, Law Society of Kenya representative Florence Mwangangi.

In her own words

"I want to take this opportunity to thank womanhood, to praise the woman of Kenya. I am a product of the power of women. As a law practitioner, I got in touch with the problems, marginalization, sheer desperate situation of women.

This is how we came up together and started agitating for women. I am proud to be a woman of Kenya. All these values everyone is talking about (affirmative action in the new constitution) is because women put their voices together. The Kenyan constitution is the richest constitution that the world has today. The other countries can emulate us. But as rich as it is, if we don't utilize it, it will be a piece of paper.

This country will have changed greatly in another 10 years. The Sh3 Billion that will go to the county every year must also be utilized by our women. Do not leave it for business as usual. We wanted a system that removed women form poverty and it is here. We must realize the promise. We have walked ourselves into First Class citizens.

In Uganda women did not take up the positions and ceded them to the men.

Do you have the skills to run the politics of the county? For me, power is a position in which I can fully impact on people down there. As we were writing the constitution, I was going to school. The standards are high, the capacity are high. We already have it(the new constitution). What can I get from it? If we respect the constitution, we respect the rule of law, where the law serves us equally and the court does not discriminate on a poor woman because she has no money, our politics and social life will be good. Thumbs up to our women. You have made me what I am today."