Nairobi — A court has stopped the swearing in ceremony of Supreme Court judges due Monday.
High Court judge Justice Jeanne Gacheche issued the orders Friday following an application by the Federation of Women Lawyers (Fida) and five other women lobby groups that the nomination of the five judges did not reflect gender balance.
The lobbies went to court citing constitutional provisions that require that no more than two thirds of elective bodies shall be of the same gender.
"In the past, women as a group have been discriminated against and have been underrepresented in top judicial institutions and as at the time of the impugned recommendations, there was no woman in the Kenya Court of Appeal," reads the petition.
"The Constitution at Article 27 further requires that in addition to the above measures, the State shall take legislative and other measures to implement the principle that no more that two thirds of the members of elective and appointive bodies shall be of the same gender."
On Wednesday, the Judicial Service Commission announced the five nominees to sit on the Supreme Court: Justice Philip Tunoi, Justice Jackton Ojwang, Justice Ibrahim Mohammed, Dr Smokin Wanjala and Ms Njoki Ndunga. They were appointed to the court on Thursday.
In total, the JSC interviewed 25 candidates.
The court's move puts the constitution of the highest court in the land in limbo since the five would have been part of a seven- judge bench.
The other two members of the court are the Chief Justice and his deputy.
On Thursday, President Kibaki appointed Dr Willy Mutunga and Ms Nancy Baraza to the two positions.
At the same time, lobby groups obtained permission from the court to amend an application which sought to stop President Kibaki from appointing Keriako Tobiko as Director of Public Prosecutions.
Kenya Youth Parliament, Kenya Youth League and Mr Patrick Njuguna had filed the application on Thursday, at the High Court, but it was overtaken by events after the President announced the appointment before the matter was brought to the attention of a judge.
Through a gazette notice on Thursday evening, the President announced that he had appointed Dr Willy Mutunga as Chief Justice, Ms Nancy Baraza as Deputy Chief Justice and Mr Tobiko as the DPP.
The application will be amended to seek the court's determination on whether the President can appoint a person to a state office when "serious issues of integrity" have been raised about the person, according to the lobby groups.
The amended petition will also seek the court's interpretation of Article 73 of the Constitution, which provides the guiding principles of leadership and integrity of a state officer, and to define "integrity" in the context of the Constitution.
According to Anthony Oluoch, counsel for the petitioners, they will withdraw the request for injunction, which had been overtaken by the President's action.
They were also allowed to file afresh on Monday, after which the new application will be taken to the new Chief Justice Willy Mutunga to constitute a bench to hear the application, he added.
In the petition, the three applicants were also seeking a declaration that Mr Tobiko's nomination breached Constitutional provisions on integrity, leadership, competence and impartiality of a public officer.
The lobbies argued that, during the confirmation hearings by the Constitution Oversight Implementation Committee, complaints about Mr Tobiko's integrity and competence were presented, but ignored.
They cite a complaint by former deputy Public Prosecutor Philip Murgor, who told the committee that there was a likelihood of conflict of interest if Mr Tobiko is appointed.
They also cite complaints raised by former constitution review commission chairman Yash Pal Ghai, judge of the Appeal Court Moijo ole Keiwa and anti-corruption chief Prof Patrick Lumumba.
Prof Ghai had objected to Mr Tobiko's appointment because he had allegedly worked for anti-reform politicians to sabotage the work of the defunct Constitution of Kenya Review Commission, where both were commissioners.
Prof Lumumba was called to explain contents of a book which he published, which portrayed Mr Tobiko as among the forces that had worked hard to scuttle reforms in Kenya.