Justice Martha Koome is set to become the third Chief Justice under the 2010 constitution. She succeeds Chief Justice Maraga who retired on 12 January 2021 upon reaching the age of 70.
Justice Martha Koome’s nomination is a historic moment for Kenyan women, who have been missing from higher ranking courts until recent years.
Women in the judiciary were initially concentrated in magistrates courts. This excluded them from high ranking cases that shaped the legal principles to be followed, often for years to come.
The first woman judge joined the High Court only in 1993. It was not until 2003 that the first woman judge joined the Court of Appeal, then the highest court in the land.
Since then, there has been progress in the number of women joining the judiciary and rising through the ranks, particularly after the promulgation of Kenya’s new constitution in 2010.
This was largely due to the application of the two-thirds gender principle found in the new constitution. There have been divergent views on whether this threshold applies to each court, or – as the Judicial Service Commission insists – the judiciary as a whole.
While there was no female appeal court judge in 2010, they constituted seven of the 22 Court of Appeal judges by 2017 (32%). The proportion grew from 40% to 42% in the High Court and from 32% to 40% in all superior courts during the same period. Moreover, the proportion of women magistrates jumped from 37% to a whopping 78%.
The Supreme Court has only had two women justices out of seven since its establishment in 2011. This still falls short of the one-third minimum threshold required under Kenya’s constitution for all public institutions.
This is about to change with the ascendance of a woman judge to the top of the tier, increasing the number to three.
Why women judges matter
Lady Justice Mumbi Ngugi
There is a proliferation of studies that show that having women judges really matters. These studies are framed on two justifications: first on grounds of legitimacy.
On this count, judiciaries must democratically represent and mirror the population characteristics in terms of gender, race, class, among others.
The second justification is the difference that women judges will make for gender justice. Some researchers posit that they bring in an essentially female perspective to judging and law that is more “motherly” , or “womanly”.
Others argue that women judges bring their unique life experiences to judging that will challenge laws that reflect male concerns. Still others believe that women judges will sensitise and educate male judges about gender stereotypes, myths and male bias reflected in their judgments.
Looking ahead
Chief Justice Martha Koome will be immediately confronted with a standoff between the judiciary and the executive arms of government that has stalled the appointment of 41 judges of the High Court and Court of Appeal. She also faces a huge backlog of cases built up over years.
She will be the President of a Supreme Court and head of a judiciary that has been perceived as conservative in a few serious matters of constitutional and public importance. These include the implementation of the two thirds gender principle and electoral fairness among others.
Top of it all is the Building Bridges Initiative that was nullified by a five judge bench of the High Court. The controversial ruling has been challenged on several legal grounds, and some suspect the matter will be hot on the Judiciary head.
Internally, the new chief justice is expected to extend ongoing reforms. Most importantly, she will continue the reforms to rid the judiciary of corruption, inefficiencies leading to case backlogs while embracing ICT in the justice system. All these are intended to enhance access to justice and win the people’s trust in the judiciary.
