Compliance of Two-Thirds Gender Principle: An Assessment of Kenya’s Judiciary

Kipkogei Kemboi
Post Date: 08 February 2021

By Leo Kemboi

The Gender principle passed in the 2010 Constitution was an unintended consequence of underrepresentation of the Women gender consistently in all arms of government since independence. Article 27(8) requires the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. Judiciary is one of the arms of the government is obligated to comply with the two-thirds gender principle. The Judicial Service Commission (JSC) is required under Article 172(2)b of the Constitution of Kenya to promote gender equality. Section 3(j) of the Judicial Service Act requires the Judicial Service Commission and Judiciary to promote gender equity. Section 10(2) of the Third Schedule of the Judicial Service Act requires the Judicial Service Commission to take into account gender consideration in the recommendations of Candidates for Appointments . 

Compared to other arms of government, the Judiciary has made significant strides in the implementation of two-thirds gender principle with the aspiration to make equal (50:50) . The JSC Service Charter Part II takes cognizance of the Constitutional and Legal obligations of the Commission in implementing the two-thirds gender principle . Another key policy document Sustaining Judiciary Transformation (SJT) 2017-2021 doesn’t mention strategies to be used in obtaining gender parity across all court levels . Judiciary has made more progress in the advancement of gender equity ever since the enactment of the new Constitution in 2010. They are more female judges at higher courts post-2010 . 

From literature, evidence exists that women presence on the court is not an act of mere formality but brings forth benefits to society. Massie, Johnson, and Gubala (2002) find that the influence of female judicial officers to be more pronounced on issues that are of the utmost concern to women and the community in the United States Courts of Appeals . Johnson, Songer, and  Jilani (2011) find that women Judicial officers vote more liberally on civil rights, equality, and private economic cases, and more conservatively on criminal cases in the Appeal Courts of Canada . 

Another Jurist, Judge Vanessa Ruiz argues that women presence in the Judiciary is not only important for legitimacy, but women contribute to the quality of decision making and quality of justice itself by bringing women lived experiences to their judicial actions . Women lived experiences include complex family relationships, obligations, social and cultural impacts. 

Kenya has 706 judicial officers equivalent to 1 judicial officer for every 69,000 Kenyans. The breakdown of the Court is shown in the chart below. 


Call for Participation in Pre- Budget Forums: Pointers to Note

Raphael Muya
Post Date: 27 January 2021

The IEA – Kenya pre-budget forum is a platform that seeks to influence government decisions and help civil society develop viable alternatives to government policy. Equally, it provides a complementary avenue for deepening participatory budgeting, given the legal basis for public participation in government planning and budgeting processes. This year's pre-budget forum will be held Virtually on 27th and 28th January 2021. This is the time to share views and proposals for consideration by the National and County Treasuries either expenditure or tax oriented. 


Application of Competition Law in Kenya’s Public Sector: The Case of Kenyan Health Sector

Leo Kipkogei Kemboi
Post Date: 22 January 2021

By Leo Kipkogei Kemboi 

The article is written in commemoration of the World Competition day whose theme in 2020 was competition policy and access to health care . The main goal of the international competition day is to ensure that consumers from across the world realise the potential benefits from an effectively implemented competition regime, and also play their role in making competition regimes work worldwide . 

In the analysis, I find that failure to observe competition principles in the Constitution of Kenya and various statutes led to the loss of economic welfare. Global production of COVID19 supplies was being ramped up across the global value chains and hence there were various opportunities for the agency in charge of supplying the medical supplies to competitively source for them. The health crisis made Competition policy to be at the centre of the current COVID19 crisis because of the present competition concerns on the supply chain. I also show that by entity in charge of health in choosing  one form of purchasing COVID19 supplies led to inefficient trade-offs. 

Health care is a shared function between two levels of government with health policy and management of referral hospitals being the only function that the national government has remained with as per the Fourth Schedule of the Constitution of Kenya. Article 43 (1) says that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.

The Constitution of Kenya 2010 emphasizes the importance of Consumer rights. Article 46 of the CoK 2010 lists out rights of consumers whose application is applied to both public and private entities. Under the fourth schedule, the function of Consumer protection, including standards for social security and professional pension plans. Reading the Competition Act together with Constitution, it’s clear the regulation of competition issues is left at the hands of the Competition Authority of Kenya.

Most of the competition concerns around government procurement were exacerbated by the COVID19 pandemic. Government is a big player in the provision of health services. At the start of the spread of COVID19 in Kenya, the Kenya Medical Supplies Authority(KEMSA) was engaged in the purchase of the non-pharmaceutical supplies which were urgently needed by medical personnel and the whole population generally. KEMSA is a monopoly by design because all government purchases have to be made through it and they are required by law to have strategic resource of medical supplies for at least 6 months . The purchases made by KEMSA were later confirmed by the Auditor General to have breached the constitution, the procurement law and other Kenyan laws . Kagume and others (2019) find that health sector was among the top six funded in the national government but with greater share of resources being queried by the Auditor General for being unlawful expenditures . The purchases made by KEMSA also violated Kenya’s competition law in the several ways as detailed below. 


The Fallacy of a Vaccine as a Public Good

Kwame Owino
Post Date: 14 December 2020

Writing in December 2020, there’s a high chance that in the next year, the primary goal of governments regarding the Covid-19 emergency will involve a policy plan for ensuring universal access to vaccines. Whether the public infrastructure to deploy the solution effectively is available or not, will be evident in Kenya in a short while. My guess is that even if the vaccine were made available in sufficient quantities, the inherent weaknesses in the public sector’s management and priorities will show. 


Neglected Social Justice Principles in Kenya’s Constitution 

Kipkogei Kemboi
Post Date: 04 November 2020

Due to years of neglect, marginalization and bad governance, some key social justice principles were given prominence in the Constitution promulgated in 2010.


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