Gays have rights, but can­not marry – DCJ nom­i­nee

They are pro­tected by the Con­sti­tu­tion and are free to choose their lifestyle, judge Mwilu says

The Star (Kenya) - - Politics General - OLIVER MATHENGE @Oliv­erMa­thenge

Al­though same sex mar­riages are out­lawed by the Con­sti­tu­tion, the rights of gay peo­ple are pro­tected, Deputy Chief Jus­tice nom­i­nee Philom­ena Mwilu has said.

She spoke be­fore the Na­tional As­sem­bly Jus­tice and Le­gal Af­fairs Com­mit­tee yes­ter­day, when the team vet­ted her.

Mwilu said that gay peo­ple have free­dom of choice.

“For me to an­swer the ques­tion about gay­ism, I would have to know whether gay­ism is a mat­ter of choice or it is an in-born sit­u­a­tion. As a mat­ter of choice and as­so­ci­a­tion, gay peo­ple are pro­tected by the Con­sti­tu­tion’s Bill of Rights, but not mar­riage,” she said.

Mwilu has also tack­led the is­sue of in­junc­tions which the ex­ec­u­tive, led by Pres­i­dent Uhuru Keny­atta, has ac­cused the ju­di­ciary of us­ing to frus­trate de­vel­op­ment.

She said all cases on in­junc­tions must be han­dled in­de­pen­dently and is­sued on merit, but also said judges should ex­pe­dite the cases.

“The in­de­pen­dence of a judge’s de­ci­sions can­not be touched, but I would en­cour­age them to hear cases on merit. No judge, not even the Chief Jus­tice, can in­ter­fere with the in­de­pen­dence of another judge,” Mwilu told the MPs.

She added that there must be a con­scious ef­fort by all arms of government to co­op­er­ate and con­sult on all mat­ters af­fect­ing the public.

“The ju­di­ciary is in­de­pen­dent in its man­date, but it must have con­struc­tive in­ter­de­pen­dence with other arms [of government],” Mwilu said.

She said that her pri­or­ity as DCJ will be to en­sure the ju­di­ciary has a con­ducive work­ing en­vi­ron­ment for judges.

“We have a per­for­mance pro­gramme in the ju­di­ciary. We are go­ing to strengthen what has al­ready been es­tab­lished,” Mwilu said.

The judge also said there ap­pears to be a dis­con­nect in per­sonal re­la­tion­ships among Supreme Court judges but not in ide­ol­ogy.

Jus­tice Mwilu said she sup­ports the Chief Jus­tice in urg­ing the ju­di­ciary to en­gage al­ter­na­tive dis­pute res­o­lu­tion meth­ods to avoid un­nec­es­sary cases in the courts. “If peo­ple are forced to sit un­der a me­di­a­tor through ar­bi­tra­tion most cases would be dealt with quickly,” she said.

Mwilu has sur­vived in the ju­di­ciary by be­ing firm, as be­ing a woman judge is a chal­lenge in it­self, she says.

“I have had in­stances where men have won­dered why I was their se­nior, but the only way to dis­lodge me was through merit,” the judge said.

Mwilu said it is only the Chief Jus­tice’s term that is lim­ited to 10 years by the Con­sti­tu­tion.

“By the time I fin­ish serv­ing as DCJ, I’ll have another 12 years or so re­main­ing to serve as a judge in the Supreme Court,” she said.

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