BY THOMAS KARIUKI.
High Court Judge Jacqueline Kamau continues to suffer blows from colleague judges with today, another dismissing her pursuit to block judge’s election to the Judicial Service Commission.
Justice Enock Mwita saw no merit in her pursuit to stop the election of the High Court Representative to the JSC saying that non-of her rights and fundamental freedoms have been violated.
Justice Jacqueline Kamau’s suit comes hot in the heels of the election board barring her from participating in the election for the Judges’ representative.
In his arguement, Justice Jacqueline Kamau holds that in the event a man is elected a representative of the high court, constitutionally, a woman should be elected to represent the magistrate court. By the ruling of the KMJA, a woman is currently the representative of the Magistrates in the JSC and her term has not expired. The high court therefore according to KMJA, should elect a man as a representative of the high court.
Accordingly, the magistrates will be expected to vote in a woman, again, to represent them in the JSC and the cycle will continue thereby locking out any woman at whatever stage to ever in the foreseeable future become a representative of the high court and any man at whatever stage becoming a representative of the magistrates. Unless, the election of both representatives, magistrate and high court, are done at the same time.
“I find that KMJA’s decision did not discriminate on grounds of gender. The constitution itself dictates that there be one woman and a man and since the Magistrates’ representative is a woman and still serving, the representative for Judges has to be a man representative as required under Article 171 (2)(d) as read with Article 27 of the Constitution, ” ruled Judge Mwita while dismissing colleague application.
Judge Jacqueline Kamau had moved to court seeking the court to issue conservatory orders to stay or suspend the election for the position of High Court Judge Representative pending hearing and determination of her application challenging the said election.
The judge further sought the court to declare the decision by Kenya Judges and Magistrates Association set out in its executive director’s decision dated 6th April 2024 and its National Council’s letter dated 12th April 2024 is unconstitutional, null and void.
KMJA opposed the judge application through a replying affidavit sworn by executive director Daniel Mayabi arguing that under Article 171 (2) (d) of the constitution, JSC should have one High Court Judge and one Magistrate, one a woman and one a man elected by members.
KMJA officials lead by association’s President Stephen Radido told the court that they were conscious of the unfortunate situation presented by article 171(2)(d) of the Constitution on which rule 4.2 is anchored, and in order to provide some measure of solution, KMJA has formulated rule 4.3 that requires that those to be elected would have to be of different gender from those who were serving immediately before the vacancies.
Judge Radido argued that the argument by Judge Kamau and interested parties that the Court could order that election of the male representative be held in abeyance until the female representative’s term expires so that elections for the two positions can take place at the same time. This argument, though attractive, lacked constitutional backing.
KMJA told the court that the term the representatives to the JSC having been set by the Constitution at 5 years with eligibility for re-election, the court cannot legitimately shorten or extend the term. Upon a representative’s term expiring, members have a right to elect their representative and the Court cannot purport to interpret the Constitution in a manner that would curtail Judges’ or magistrates’ right to elect their representative to the JSC.
“The situation Judge Jacqueline Kamau finds herself in is not the best at any rate. However, the duty of the Court is to interpret the Constitution in a manner that advances its purposes, gives effect to its intents and illuminate its contents,” KMJA told the court.
Justice Kamau told the court that she submitted her nomination papers endorsed by 29 judges but on 6th of April KMJA executive director set to members a list of validly nominated candidates and a separate list of unsuccessful candidates with the reasons.
The judge was informed she was unsuccessful because since KMJA had a female Magistrate representative to JSC whose term is running. The judge was aggrieved by the decision and challenged it in court.
Judge Kamau that because the vacancies of the High Court Judge Representative and that of the magistrate representative fall vacant at different times, it is unlikely that a female Judge will be eligible to contest for that position in the foreseeable future.
The Judge argued that she was disqualified because she is a woman which is discriminatory; a violation of her fundamental rights and a contravention of article 27 of the Constitution. She argues that the decision also contravenes her rights under articles 36 and 38 (2) (a) (3) (c) of the Constitution.
She further argues that at the time she lodged her appeal, the respondent’s dispute resolution committee was not properly constituted and the national council’s decision was also null and void.
It was the judge’s view, that the decision further violates and threatens to violate her right to be a candidate for a position in a public office and, if elected, to occupy the office. The decision also deprives judges of the High Court the right to elect a representative of their choice and has a consequence of permanently hindering competitive politics in that election.
