The Supreme Court is not compliant with the two thirds gender principle when it comprises of five out of seven members of one gender

Brief facts

In June, 2016, three (3) vacancies arose in the Supreme Court for the positions of Chief Justice, Deputy Chief Justice and judge of the Supreme Court. After the recruitment process, the Judicial Service Commission (the 1^st respondent) nominated for appointment the 5^th, 6^th and 4^th respondents respectively. The 4^th respondent was the last judge of the Supreme Court to be appointed after the recruitment process, and as such, the composition of the Supreme Court comprised of 5 men and 2 women. The appointment of the 4^th respondent to the Supreme Court was perceived to have made the composition of that court unconstitutional, hence the filing of the consolidated petitions at the High Court. 

The gist of the arguments at the High Court were that the 1^st respondent had acted in violation of the Constitution of Kenya, 2010 (Constitution)  by making recommendations that led to the appointment of more than two thirds of judges of the Supreme Court as being of the male gender. In sum, the petition alleged that the 1^st respondent had violated the constitutional obligation to ensure equality and freedom from discrimination by failing to appoint the requisite proportion of members of the female gender to the Supreme Court. The 3^rd respondent had issued an advisory opinion to the 1^st respondent detailing the manner in which the vacancies ought to be filled and was aggrieved that the advisory opinion was ignored. 

The petitions in the High Court sought for among others; a declaration that the then composition of the Supreme Court was unconstitutional. The High Court held that the foremost consideration relating to the appointment of judges to superior courts was the question of competency and that the secondary consideration was gender equality. The court further held that while it would have been ideal to recommend a woman to the position that was occupied by the 4^th respondent, there was no clear breach of the Constitution and as such, the Supreme Court, as it then was constituted, did not violate the Constitution. The court also held that while the 1^st respondent was free to consider advice from the 3^rd respondent in making its decision, it was not under any obligation to abide by that opinion. Aggrieved by the High Courts decision, the appellant filed the instant appeal.

Issues

1. Whether the Supreme Court was compliant with the two thirds gender principle when it was comprised five out of seven members of one gender. 
2. Whether the staffing of lower cadres of the judicial service with more members of one gender meant that the judicial service as a whole was constitutionally compliant with the two thirds gender principle. 
3. Whether merit was the primary consideration while gender was a secondary consideration in the recruitment of judges to the Supreme Court. 
4. Whether an advisory opinion by the National Gender and Equality Commission detailing the manner in which vacancies at the Supreme Court ought to be filled was binding on the Judicial Service Commission. 

Held

1. Judges of the Supreme Court were recruited in accordance with criteria set out in article 166(3) of the Constitution. That provision was given life through the Judicial Service Act, and buttressed by other provisions of the law, such as section 10(2)(b) of the Public Service (Values and Principles) Act 2015, particularly sections 3, 13 and section 14 of the First Schedule to the Judicial Service Act. It could not be said that merit should be a primary consideration and that gender became a secondary consideration. That was because the Constitution and the Judicial Service Act outlined factors that the 1^st respondent was required to take into consideration: 
   1. The two thirds gender principle was a constitutional directive. It was framed in imperative terms, and was a mandatory factor that the 1^st respondent should take into consideration when recruiting for the office of vacancy of judge. The question of gender was as important as the one of competency. Every State organ, the 1^st respondent included, was enjoined to ensure that the two thirds gender principle set out in article 27(8) of the Constitution was complied with. When undertaking recruitments, it was bound by law to inculcate that constitutional edict in the recruitment process. 
   2. The 1^st respondent had to ensure that measures were introduced to incorporate the gender imperative, alongside merit, fairness, good judgment and overall competence. To hold otherwise, would in every instance result in a recruitment process that did not accord with the responsibility placed on organs such as the 1^st respondent and would ultimately lead to appointments that were contrary to the dictates of the Constitution. It was situations such as those that articles 27(6) and (8) of the Constitution were promulgated to address. 
2. The Supreme Court was not compliant with the gender principle set out in article 27 of the Constitution when it was comprised five out of seven members of one gender. With a total composition of seven members, when five members of the court were of one gender, then no matter the mathematical maneuvering, be it expressed in decimals or fractions, it would result in more than two thirds of the members of the court being of one gender, and that was in violation of a fundamental constitutional imperative. 
3. A purposive interpretation of article 27(6) and (8) of the Constitution was necessary. In other words, an interpretation when construed within the recruitment process took into account the spirit of the Constitution, the history of the gender and equality provisions as well as the historical context and resulted in a court where no more than four members were of one gender. 
4. There was no evidence of discrimination placed before the court. There was no evidence showing that the 1^st respondent had set out to exclude women from appointment to the Supreme Court, however, it was not necessary to demonstrate an intention to discriminate.
5. The historical context outlined by the High Court and the Supreme Court in Federation of Women Lawyers Kenya (FIDA-K) & 5 Others v Attorney General & Another [2011] eKLR and Advisory Opinion No 2 of 2012 resulted in systemic discrimination, and that necessitated a constitutional edict pursuant to article 27(6) and (8), intended to ensure that the notions of equality and equal protection before the law were realized. In effect, the Constitution required that the two-thirds gender rule be implemented by the State, and all State organs, including the 1^st respondent through the introduction of measures to address disadvantaged groups who had experienced and continued to experience discrimination. 
6. The rights envisaged under article 27 of the Constitution, that was equality and non-discrimination were constitutional imperatives. That was fortified by article 2(6) of the Constitution which allowed for recognition and adoption of relevant international and regional frameworks to which Kenya was a party into Kenyas laws. 
7. In the context of the Advisory Opinion No 2 of 2012, the Supreme Court addressed the question of filling of positions during the general election of March 4, 2013. The court took judicial notice of the fact that Parliament exercised its power under article 261(2) of the Constitution to extend the time within which article 27(8) of the Constitution was to be actualized. 
8. While there was no evidence that the 1^st respondent acted in a discriminatory manner by deliberately excluding women in the recruitment process, if the previously followed process continued without change, unconstitutional gender quotas would continue to prevail. The effect would be to perpetuate discriminatory practices that were an affront to article 27 of the Constitution. The provision called for a substantive approach to equality, one which recognized the historical context in the recruitment of women to high office, and required that affirmative action be implemented to address the existing inequalities.
9. The 1^st respondent had a duty to ensure that the two thirds gender principle was adhered to when undertaking recruitment in 2016. By that time, it failed to introduce appropriate measures that would ensure that the configuration of the judges in the Supreme Court adhered to the constitutional imperatives.
10. The appointment of the 4^th respondent to the Supreme Court was not unconstitutional. The 4^th respondent was appointed in accordance with the procedure set out in the Judicial Service Act and the First Schedule thereto, as well as the aspirations contained in section 10 of the Public Service (Values and Principles) Act, 2015. In those provisions, the gender consideration featured but was not a primary consideration of the 1^st respondent as it undertook its duty to fill the vacancies in the Supreme Court. However, it was nevertheless a consideration that was to guide the 1^st respondent in the appointments. It was the application of that law which relegated the gender aspect to a secondary consideration and resulted in the Supreme Court composition falling short of article 27(8) of the Constitution. 
11. Both the High Court and the Supreme Court had held that article 27(8) of the Constitution was to be progressively realized meaning that the State, through its agencies such as the 1^st respondent, were to take specific measures, in incremental steps, to ensure that a fair share of women were appointed or elected to positions by the State. Progressive realization meant that until those measures were taken, previous actions taken by the respondents did not violate the Constitution provided that in good faith measures were initiated to ensure that eventually, the constitutional goal was reached. That was the situation prevailing in the instant appeal. During the recruitment of the 4^th respondent, the situation obtaining at the time was that, no mandatory obligations to take measures to promote affirmative action in favour of women judges during the recruitment process were in place.
12. Given the passage of time since the Constitution was promulgated, there remained an obligation on the 1^st respondent to embark on taking deliberate steps to commence a process or processes that ensured substantive gender equality as espoused in articles 27(6) and (8) of the Constitution was realized. The court took judicial notice that following the recruitment for that court conducted by the 1^st respondent in 2021, the composition of female to male judges had reached the constitutional threshold of 3:4, with the result that the court was constitutionally compliant. The challenge on the appointment of the 4^th respondents appointment was therefore without basis. 
13. To argue that because the lower cadres of the judicial service were staffed with more members of one gender did not mean that the judicial service as a whole was constitutionally compliant. A proper interpretation of article 27(8) of the Constitution was one where each level of the judicial service adhered as closely as possible to the two-thirds gender principle; where the most appropriate interpretation was one that recognized and enjoined the State to address the inequalities suffered by women over time and enhanced affirmative action policies to address past discrimination and that resulted in structural changes in selection processes that then ultimately lead to robust appointive processes so as to ensure compliance. 
14. The 3^rd respondent was established by the National Gender and Equality Commission Act, 2011 pursuant to article 59(4) of the Constitution. Section 4 thereof gave it the status of a commission within the meaning of Chapter 15 of the Constitution. The objects of such commissions included the promotion of constitutionalism, to protect the sovereignty of the people as well as to secure the observance of the Constitution by all State organs. The 1^st respondent was also an independent commission created under article 248 of the Constitution, with similar objects. As independent commissions, they were not subject to the direction or control of any other person or authority. The structures within which each of those commissions operated was set out in statute, and nothing in those laws or in the Constitution suggested that the 3^rd respondent could give binding advice to the 1^st respondent. The 3^rd respondents advisory opinion was not binding on the 1^st respondent.