Paul Ogemba
19 July 2011
Nairobi — After overcoming three attempts to scuttle the hearing of a petition challenging the nomination of five Supreme Court Judges, a three-judge bench finally began hearing and receiving submissions that could lead to the determination of the case.
The hearing has failed to kick off on three different occasions when parties raised various concerns leading to the delay of the composition of the Supreme Court, taking almost two months since the President gazetted the nominees.
When Lady Justice Jeanne Gacheche issued a conservatory order stopping the swearing-in of the five judges, lawyer Paul Muite objected to her hearing the case alone and the petition was referred to the Chief Justice.
After appointing a three judge bench, the petitioners challenged the appointing authority and wanted the role be delegated since the CJ was a party to the case.
The application was overruled by the judges, but the petitioners again filed another submission seeking that Lady Justice Philomena Mwilu should disqualify herself from the bench, which was also dismissed.
When the petition came up for hearing on Tuesday, lawyer Elisha Ongoya representing the petitioners told the court that their petition is about the struggle between equality and inequality, and that it is about the proper interpretation of the Constitution.
“The country has just begun the interpretation of the Constitution and if we start on the wrong footing, the women of this country tend to lose and all other minority groups stand in jeopardy,” said Mr Ongoya.
He faulted the Judicial Service Commission (JSC) for misinterpreting Article 27 of the Constitution, which provides for equality for both genders, stating that it is clear that no portion of one’s right can be taken away in a manner that is inconsistent with the provisions of the Constitution.
He said that the provision is clear that no position shall be held by over two thirds of the same gender, adding that the court should declare that the five out of seven positions given to men in the Supreme Court are more than the maximum Constitutional requirements.
“The JSC was exercising state authority and it did so in a manner not authorized by the Constitution. It disrespected the provisions of Article 27 and we want the court to protect the Constitution from the attacks of JSC,” said Ongoya.
He argued that when there was no clear guidelines on how many constitute a third of the seven positions in the Supreme Court, the JSC should have considered the fact that there is no woman judge in the court of appeal and given women more posts.
He said that they should have agreed on a measure of compromise to accommodate the disadvantaged groups so as to avoid the current stalemate that has stalled the composition of the Supreme Court.
The swearing-in of the five Supreme Court Judges was stopped in June by the High Court following an application by the Federation of Women Lawyers (FIDA) Kenya, and six other organisations.
They argued that the appointment of the five – Justice Philip Tunoi, Justice Jackton Boma Ojwang’, Justice Mohamed Ibrahim, Dr Smokin Wanjala and Njoki Ndung’u to the Supreme Court did not conform to the constitutional provision of gender equity.
AllAfrica – All the Time
Visit link:
Supreme Court Case Hearing Begins