JSC petitioned for lacking male magistrate, female High Court Judge representatives

The Judicial Service Commission (JSC) has never had a male magistrate or female High Court Judge representative, in its 14 years of its existence.

A fresh case filed by a human rights lobby group Sheria Mtaani and lawyer Daniel Kabue indicates that since 2010, magistrates have voted only for female colleagues while High Court Judges have elected male representatives in the commission.

The two argued that it is discriminatory for the Kenya Magistrates and Judges Association (KMJA) to lock out the only female candidate to replace High Court Judge David Majanja.

“The petitioners are apprehensive that if this current cycle persists unchecked, it is conceivable that, by design, no male magistrate will ever be appointed as a commissioner to the JSC. Such an outcome would amount to discrimination against male members of the KMJA, who possess the right not only to affiliate with the association, its activities, including voting and candidacy,” argued lawyer Shadrack Wambui, representing the two.

When JSC was first constituted, the then High Court Judge Isaac Lenaola (now Supreme Court Judge) and Chief Magistrate Emily Ominde (now High Court Judge) were elected as representatives.

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It is only the Supreme Court and Court of Appeal that have had alternate male and female representatives.

Currently, Justice Fatuma Sichale is the Court of Appeal representative while Justice Mohamed Ibrahim represents Supreme Court. Justice Sichale replaced Justice Mohamed Warsame while Ibrahim took over from Deputy Chief Justice Philomena Mwilu.

The representative position runs for a period of three years. The term of Justice Majanja is coming to an end in May 2024.

This is the second case filed over the upcoming election. The first case was filed by High Court Judge Jaqueline Kamau.

The person who is to replace her is now at the heart of the split between female High Court Judges and their male counterparts.

KJMA notified its members that only male Judges will be eligible to replace Justice Majanja.

The Association's decision was backed by the fact that Chief Magistrate Evelyne Olwade, a female is a representative of the magistrates in the commission. It claimed that it is seeking to balance the scales by restricting the upcoming election of a representative to males only.

However, Justice Kamau argued in her case that the election should be open to all.

She lamented that despite expressing her interest in the position, she was unceremoniously locked out.

“The petitioner asserts that the respondent has breached and threatens to continue violating her fundamental human rights and freedoms by illegally and unjustifiably rejecting her application to contest for the position of High Court Judge representative to the JSC,” argued Justice Kamau through her lawyers Iseme, Kamau Company Advocates.

She said that Justice Majanja is set to leave JSC on May 15, 2024.

Justice Kamau explained that the notice inviting candidates to vie for Justice Majanja's replacement was sent to all.

“The notice was sent to all members of the Respondent without exception. The notice stated that the elections would be held on May 11, 2024. The election date was subsequently changed to May 25, 2024,” she said.

Justice Kamau said she was the only female candidate who declared interest to replace Justice Majanja. However, she laments that she was the only candidate who was knocked out.

“The Executive Director in his decision dated April 6, 2024, explained that the Petitioner’s application was unsuccessful because as a woman she was precluded under Rule 4.2 of the Election Rules from contesting for the position of the High Court Judge representative. She was thus disqualified on the basis of her gender,” she argued.

KJMA Chief Executive Officer Daniel Sepu in his reply said he believes that whenever a vacancy falls in JSC, the replacement should always be of the opposite gender if there is a sitting representative either a male or a female.

Sepu insisted that the person who should replace Justice Majanja should be a man and not a woman.