Feminine input to extend legal equality

IF PARLIAMENT formally approves the nomination of Justice Martha Koome as the next Chief Justice of Kenya and president of the Supreme Court, as is widely expected, she will become the first woman to occupy the seat in Kenya’s history.

Justice Koome topped nine other candidates – including two other women – for the job during interviews carried out by the Judicial Service Commission (JSC) between April 10 and 23 this year.

Koome will become the third chief justice under the 2010 constitution. She succeeds Chief Justice Maraga, who retired on January 12 after reaching the age of 70.

Koome’s nomination is a historic moment for Kenyan women, who have been missing from higher ranking courts until recent years. Women in the judiciary were initially concentrated in magistrate’s courts. This excluded them from high-ranking cases that shaped the legal principles to be followed, often for years to come.

The first woman judge joined the high court only in 1993. It was not until 2003 that the first woman judge joined the Court of Appeal, then the highest court in the land.

Since then, there has been progress in the number of women joining the judiciary and rising through the ranks, particularly after the promulgation of Kenya’s new constitution in 2010.

This was largely due to the application of the two-thirds gender principle found in the new constitution.

There have been divergent views on whether this threshold applies to each court, or – as the JSC insists – the judiciary as a whole.

While there was no female appeal court judge in 2010, they constituted seven of the 22 Court of Appeal judges by 2017 (32%). The proportion grew from 40% to 42% in the high court and from 32% to 40% in all superior courts during the same period. Moreover, the proportion of female magistrates jumped from 37% to a whopping 78%.

The Supreme Court has had only two women justices out of seven since its establishment in 2011. This falls short of the one-third minimum threshold required under Kenya’s constitution for all public institutions. This is about to change with the ascendance of a female judge to the top of the tier, increasing the number to three.

Studies show that the importance of female judges are based on two justifications: first, on grounds of legitimacy.

On this count, judiciaries must democratically mirror the population characteristics in terms of gender, race and class, among other things.

The second justification is the difference female judges will make for gender justice.

Some researchers posit that they bring in an essentially female perspective to judging and law.

Others argue that women judges bring their unique life experiences to judging that will challenge laws that reflect male concerns. Still others believe women judges will sensitise and educate male judges about gender stereotypes, myths and male bias reflected in their judgments.

Koome has been an active and long-standing member of the International Association of Women Judges – Kenya Chapter, which focuses on access to justice for women and children. She was the UN Person of the Year 2020 runner-up, recognised for her advocacy work to improve the rights of women and children in the justice system.

Her ascendance to chief justice raises hope and expectations among many for a better world for women and children.