A High Court judge has filed a lawsuit after being locked out of next week’s elections for a representative to the Judicial Service Commission (JSC).
Justice Jacqueline Kamau argued before Justice Chacha Mwita Thursday that the election rules for the Kenya Magistrates and Judges Association (KMJA) are unconstitutional, as they have the effect of permanently excluding women judges from representing the association at the JSC.
The KMJA is represented by two commissioners at the JSC—a judge and a magistrate from either gender.
The current representatives are High Court judge David Majanja, whose term has come to an end, and Evelyne Olwande, a magistrate, whose term ends in January 2026.
Justice Kamau argued that while locking her out of the race, KMJA’s interpretation contained in Rule 4.2 of the Election Rules, requires that the High Court judge representative be male and the future magistrate representative be female.
She argued through senior counsel Kamau Karori that the interpretation was unconstitutional and not permissible as it was an affront to Kenya’s constitutional values and principles.
“Consequently, the respondent’s decision that the association can only elect a male judge to replace the outgoing male representative, is informed by a deliberate misunderstanding of the constituency that the petitioner was seeking to represent. The resulting decision undermines the principles of fair representation and unjustifiably discriminates against female judges,” Mr Karori submitted.
The association through lawyer Elisha Ongoya stood by its decision stating that, were Justice Kamau to be elected in the May 25 election, then two women would end up representing KMJA.
“We submit that it is elemental legal knowledge that one cannot be said to violate one’s rights by simply applying constitutional provisions. If the contrary were the case, it would lead to absurd interpretations of the Constitution,” Mr Ongoya submitted.
Justice Mwita will decide on the matter on May 23.
Justice Kamau, a former president of KMJA has sued the association led by Justice Stephen Okiyo Radido, the current president.
The members of KMJA comprise of judges of the High Court and courts with the status of the High Court, magistrates, Kadhis and Deputy Registrars.
Justice Kamau informed the court that she filed the case on her own behalf as a female judge and on behalf of other members of the KMJA who may be potentially affected by the decision to assign specific gender to the positions of High Court judge and magistrate representatives, to the JSC.
Article 171(4) of the Constitution provides that members of the JSC, apart from the Chief Justice and the Attorney-General, shall hold office for a term of five years and shall be eligible to be nominated for one further term of five years.
When the Commission was first constituted in 2010, Justice Isaac Lenaola, then High Court judge was elected to represent judges but he served for three years, to ensure continuity of JSC.
Justice Emily Ominde was then elected to represent magistrates and served for two terms of five years each.
Justice Aggrey Muchelule was then elected for the period 2013 to 2019 and thereafter, he was succeeded by Justice Majanja and was sworn in on May 15, 2019.
In April, KMJA notified members of the upcoming vacancy and Justice Kamau submitted her candidature, having been endorsed by 29 judges.
She was the sole female candidate but her application was rejected as KMJA already has a female magistrate’s representative, whose term is yet to end.
