MARGINALISED TRIBE

Gender shouldn't discriminate against Lenaola in Maraga succession

The appointment should consider an individual who checks as many boxes

In Summary

• Consideration of a woman to succeed Chief Justice David Maraga is already being pushed

• It is a compelling argument except that it is more convincing that someone from a  marginalised community heads the Supreme Court.

President Uhuru Kenyatta with Chief Justice David Maraga, the new Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola during the swearing-in ceremony of the Deputy Chief Justice and Justice Lenaola as a Judge of the Supreme Court at State House.
President Uhuru Kenyatta with Chief Justice David Maraga, the new Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola during the swearing-in ceremony of the Deputy Chief Justice and Justice Lenaola as a Judge of the Supreme Court at State House.
Image: PSCU

In making his maiden speech as President-elect Joe Biden promised Blacks he’d have their back because they were instrumental in his election, especially women.

Biden also promised to appoint individuals who were not only qualified but also those who as a team reflect America in race and ethnic composition.

The president-elect made these promises in recognition of not just the fact that senior government positions have historically been dominated by white men, but also because President Donald Trump went all in by making his administration virtually all white.

 

Biden has thus far lived up to his promise, and some argue he surpassed it by the appointments he has made thus far. Blacks and other minorities have been appointed to the most important positions in his government.

So much so that others, including independent minded Blacks, are now urging him to take it easy lest he overloads the government with Blacks much to the resentment of Whites. That will not be pretty.

Women, who Biden is also giving a high priority, are included as “minority” because “they do not share the same power, privileges, rights and opportunities,” according to social scientists.

In Kenya, we face the same social impediments based on immutable characteristics such as colour, gender and tribe.

One can go even deeper to say discrimination is based on whether you’re in the tribe in power or not and even then, you could be discriminated against if you’re poor or far removed from those in power in lineage and access.

There is also a special group of Kenyans that has suffered discrimination since independence.

Among these are the Samburu, who it would be interesting to know what percentage of Kenyans can locate on the map their ancestral land and location.

 

BBI seeks to fix many of these ills, including having a more inclusive government that can cater for all, not just a few.

Existing laws provide for gender equality but BBI, too, has taken another crack at addressing the issue though others argue its recipe for curing the ill is counterproductive.

Regardless of the merits or demerits of existing laws on gender equality, consideration of a woman to succeed retiring Chief Justice David Maraga is already being pushed by those who argue it is about time we have a female chief justice.

It is a compelling argument except that it is more convincing that it is about time we had someone from the marginalised community head the Supreme Court.

Someone like Justice Isaac Lenaola, a Samburu.

The Chief Justice and president of the Supreme Court post require someone who is incorruptible and unencumbered with even the slightest doubt as to their honour and integrity.

The position also requires someone who knows how to bark and effectively keeps the President and Parliament in check, or otherwise away from meddling in matters strictly pertaining to the court.

The two leading women who would naturally be considered to succeed Maraga are Deputy Chief Justice Philomena Mwilu and Supreme Court judge Njoki Ndung’u.

By virtue of the fact the two women are in the Supreme Court, they no doubt qualify for the elevation if consideration was only their mental acuity or judiciousness.

But the appointment is more than that. It requires someone who checks as many boxes and includes an individual from a tribe that has not held such plum and consequential jobs, ability to bark and effectively keep the president and parliament in check, or at least minimise their meddling with matters that are strictly judicial and more.

That person is none other than Justice Lenaola.

Samuel Omwenga is a legal analyst and political commentator