Women: Two thirds gender rule and the culture of tokenism

By Shadrack Muyesu

The justicability of gender equality under the Constitution has seen the emergence of an interesting trend in the local public service sector. Deputy positions are increasingly becoming a preserve of women even as the traditional patriarchal order persists. The support this trend has received has emboldened women leaders to go a step further and even demand their own CDF-sque kitty.

The recent application for the vacant positions of Chief and Deputy Chief Justice (where all but one of the CJ applicants were male with reverse numericals for the DCJ post) comes as the most recent manifestation of this trait. Though many wonder why, the de facto reservation of deputy slots for women means that qualified female applicants stand a better chance of appointment applying for these posts than they would applying for the top positions where they would have to contend with stellar male competition. On the same delve, would-be male applicants shy away from deputy vacancies as our mode of effecting affirmative action means that women will always be picked ahead of men, credentials notwithstanding.

What this suggests is that, to the extent that they possess the requisite qualifications for appointment to important public judicial offices, men are actually better qualified compared to women. And I second.

In comparison to their male counterparts, fewer women have distinguished themselves in the fields of academia and active litigation. They tend to pursue careers as in-house lawyers instead, even pursing alternates in the NGO world or private business, totally different from law.

Ingrained institutional bias

According to a 2015 Wall Street Journal report, women actually made a worrisome 15% of all the equity partners at law firms. Of these less than 30% were managing partners! On civil litigation the Journal noted that women accounted for a paltry 30% of all advocates appearing either as lead or trial counsels – numbers that dropped to below 25% for criminal cases.

This phenomenon has been explained in a number of ways. Primarily, an ingrained institutional bias means that the dominant males are more inclined to admit male associates than they do female. A general assumption that women have better interpersonal skills vis-a-vis the ease of interaction between males means that even where they are admitted, females likely land in-house roles where they earn less than their male counterparts. If career advancement is difficult in such circumstances, how much more is it when a greater social responsibility resigns women to dedicating less to their careers than do men?

Overlooking these realities, popular jural sentiment persists that public legal dockets be occupied by persons familiar with the court system… persons who have contributed to its growth as litigants. The constant inability of the Mutunga Supreme Court to properly apply itself to law has actually been blamed on the defiance of this dictate. If they are to be believed, it’s only proper that the next Supreme Court be composed of experienced practitioners. Though a number of the female applicants boast enviable practice records, for reasons above or otherwise, their resumes pale in comparison to those of their male counterparts. Any such applications for the top posts would be fails.

But is this the primary reason? I refuse to believe so. For starters, voices insisting on practice notwithstanding, extensive practice is not a primary requirement for appointment. Actually, some of the favourites for the post of CJ hardly boast any practice experience. Dr Willy Mutunga who, alongside Dr Smokin Wanjala, many consider to have been one of the better judges of the Supreme Court, was majorly a distinguished academician.

My point? Even with minimal practice, women can still compete favourably on account of making academic contributions to the growth of law. Unfortunately, many fail on this end as well. And this time, it’s by choice rather than historical design. Lest I am misconstrued, our country has produced some great female legal commentators, yet for every Prof Patricia Kameri Mbote, there have been 10, perhaps more, Prof Makau Mutuas.

Consciously changing course

Sadly, this trend is not about to end. Female law students are increasingly shying away from practice and academia to focus on in house careers. Away from the historical industry bias, many cite the rough and tumble of litigation, the diversity that law offers and the measured success that women have enjoyed in these diverse fields as an excuse to consciously stay away from the courtrooms. While they perform equal to, even better than male students, it is the latter that demonstrates a greater interest in “jurisprudentially productive, public appointment attracting” academic engagements such as moot and debate competitions as well as writing opinion articles and academic papers. It is such choices that metamorphose into the differences in resumes that we see when applications are made for appointments to public office.

Where they were supposed to cure the historical marginalisation of women, the misconstruction and misapplication of affirmative action has injected a culture of mediocrity in local public appointments while further subjugating women. Though gender provisions are “now” provisions, care should be taken to interpret them in a manner that doesn’t violate the principles of effective governance. Equality and good governance should be considered together, not against each other as this would amount to reading an ambiguity into the Constitution and creating a contradiction in law.

That said, it is inherently unconstitutional to demand that secretariat appointments address themselves to the two-thirds gender rule even when the substantive body is two thirds compliant. For instance, as long as the entire Supreme Court composition doesn’t violate the two-thirds rule, it’s not a legal imperative that the CJ and the DCJ should be of opposite sexes.

Comfortable with ordinary achievement

Thankfully the courts seem to agree. If the jurisprudence of “Thuita Mwangi vs. EACC High Court Petition No 153 of 2013” (where the court fused the secretariat to a body and the substantive body) may be read into the two-thirds gender rule, the rule ought to stand fulfilled if not more than two thirds OF THE SUBSTANTIVE BODY, are of the same gender, regardless of the composition of its secretariat. The general practice of invoking the rule when making secretariat appointments apart from the general substantive body is what may be generally termed as good practice. But good practice is not legally binding.

The need to encourage women to pursue career distinction and the importance of creating an enabling environment that will aid this pursuit shouldn’t be sacrificed at the altar of pursuing the gender rule. Sadly, we seem to have ignored the former.

The pursuit of gender parity has left women comfortable with ordinary achievement. They know that even with weaker CVs, they are guaranteed public spots. No one has stopped women lawyers from applying for top posts. It is a combination of limited ambition, an ingrained culture of expectation and weaker CVs that has them shying away from taking leading roles. Women should be supported, given even, but only when equally deserving.