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“The JSC has, after lengthy deliberations, recommended Justice Lenaola for appointment as judge of the Supreme Court of Kenya and has submitted his name to President Uhuru Kenyatta,” the commission’s Vice Chairperson Margaret Kobia said in a statement on Tuesday evening.
Lenaola's name will now be sent to President Uhuru Kenyatta who will forward it to the National Assembly for vetting.
However, the National Gender and Equality Commission has opposed the nomination and called for the JSC to rescind its decision.
Nomination unconstitutional
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The commission argued that the nomination of Lenaola to the apex court went against the two-thirds gender principle and was therefore unconstitutional.
“We are dismayed that the JSC disregarded our advice on the compliance of the two-thirds gender principle as far as the composition of the Supreme Court bench is concerned.
The JSC has failed to adhere to the Constitution and has contravened the law by nominating a man as Judge of the Supreme Court,” the commission said in a statement signed by its chairperson Winfred Lichuma.
Article 27(8), a provision in the Bill of Rights, provides that 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.
Should Justice Lenaola’s name be approved by parliament, the Supreme Court will have five men out of the seven judge bench that includes the new Chief Justice David Maraga who is also the president of the court.
This will only leave two women, Lady Justice Njoki Ndung’u and Lady Justice Philomena Mwilu who is awaiting parliament’s approval to be the country’s next Deputy Chief Justice.