By Mahira Siddiqui • February 12, 2012•Writers in Residence
Njeri Thuku is a Resident Magistrate in Kisii located in southwest Kenya. Ms. Thuku received her Bachelor of Law with a minor in Economics from Keele University-U.K., a Diploma in Law from Kenya School of Law, and a Certificate in Mediation and Arbitration from the International Law Institute, in collaboration with Georgetown University.
Ms. Thuku is the recipient of the International Women Judges Graduate Fellowship, established by Golden Gate University School of Law and the International Association of Women Judges (IAWJ) in an effort to advance issues involving the role of women in international justice systems.
As part of Black History Month, Magistrate Thuku speaks about the need for advancement of women of color, her experiences as an international feminist "then", and her optimistic outlook for Kenyan women "now". The views expressed below are her own and do not reflect the Kenyan Judiciary’s position.
Could you describe some of the predominant differences between the Kenyan and United States justice system?
The biggest difference would be the structure of the judicial system. As you know, the United States has two separate court systems: state and federal and Kenya has just one. We have Magistrate courts, the High court, the Court of Appeal, and then the Supreme Court but it’s just one over the whole land.
Also, my understanding of magistrates here is that they mostly do administrative work, whereas just like the judges, we have a full case, a full docket, which we refer to as a cause list. Also, magistrates have smaller jurisdictions compared to judges.
There is also no system of juries either—that’s a big deal. And what are your thoughts on the absence of a jury body in Kenya? You know I’m not sure how it would work in Kenya but I feel it could be abused more than a means of strengthening our system.
In regard to the role of women and global need for equality, what is your general idea of a feminist?
I think a feminist is a person who first of all, is not aggressive, second, she doesn’t need to be single to be a feminist, and third, she looks at the world and appreciates the role of women. She doesn’t think anything a man can do a women can do better. No. Rather, a feminist appreciates the different roles men and women play and embraces the strengths of women.
To add, as a woman on the bench, it is important to realize that anytime a woman comes into court in Kenya it is not by choice, whether it’s a contract or a divorce issue, she is not coming in by choice. I applaud these women who go to court because they cover more ground than men in making that decision.
Has there been a movement in Kenya to ensure women’s equality much like the United States women's movement?
I think it’s in the early stages. The reason I say that is because when you watch the news you see many men and very few women in leadership. In the last year for example, the Supreme Court chose two new judges and somehow they did the math and figured out that out of seven judges, two was an adequate space to give to women.
Local women activists used the little space they had in the media and said, “This math is wrong, two is not adequate to our Constitution.” Our Constitution provides that for every position in government there has to be a 1/3 balance. For example, if there is 2/3 men then 1/3 have to be women. Due to such woman activists, I would say Kenya is in the early stages of becoming more vocal.
Can you speak about any struggles you’ve encountered as a woman?
I worked in Nairobi and my first posting with the Judiciary was in Kisii, a small town about 400 miles southwest from Nairobi. Out of the 40 lawyers who practiced only 3 were women. So I found some of the male lawyers did not take kindly to my being firm when I made decisions on cases. That sursprised me because this was not their response to my male colleagues. But with time I developed thick skin.
According to the International Environmental Law Research Centre, women constitute over 50% of Kenya’s population, however, many are oppressed due to customary laws and practices. Additionally, a significantly low percentage of women are employed due to a lack of equal education and skills training, cultural attitudes about women in the workforce, or familial obligations. Could you elaborate on the legal status and progress of women in Kenya with respect to these aspects?
Our new constitution from 2010 improved the status of women in two major ways. The first, as I’ve previously mentioned, is the 1/3 balance requirement. Second, the Constitution gives equal rights to children among men and women. However, it’s very expensive, as is here, to pay for attorney fees. Fortunately, the Federation for Women Lawyers in Kenya, would prepare documents and women would come to court and represent themselves pro se. I saw this change implemented firsthand in Kisii and it blew my mind as the women came to court representing themselves but stating in clear terms what they wanted the court to do for them. In the city you would expect this, but not in the village.
The International Association of Women Judges (IAWJ) believes that women judges are in a unique position to impact the rights of women through the judicial system, and to protect and empower women throughout the world. How do you envision advancing women’s rights in Kenya through your International Women Judges Graduate Fellowship?
I had a case before I came here and I made a decision based on precedent. After I made this decision, I talked about it with a lady judge who told me what I could have done. And then I came here, and in one of my classes, one of my professors repeated the same thing. From this I learned there is a different way of expanding rights and I hope to teach whomever I’m given the opportunity to teach. Prior to coming here, I couldn’t teach without a Masters of Law degree now I’m eager to share what I’ve learned through this fellowship. So on a personal level, that’s how I intend to do it.
Ms. JD created a Global Education Fund to support the emergence of women lawyers internationally. Each year this fund makes it possible for two Ugandan women to pursue their dreams and attend law school. Is this fund something you feel would be appropriate, maybe even necessary, to implement in Kenya?
Absolutely. There are so many deserving students and we have quite a bulging population. In the United States there are more people in the middle ages ranging from 40 to 60, whereas Kenya has more people aged between 18 and 35. What that translates to is that there are many people who want to go to school and unfortunately we don’t have as many schools as we should. It’s now become that you have to be a A or B student to be able to attend a university, maybe even A or A- student. This is just for a public university. And so, if parents are not able to send their children to private universities, they are forced to find alternatives to pursuing their dreams or settle for something else. That’s one of the things I’m interested in when I go back—my long-term goal is to have a fund available for this reason.
Your mantra is “the Judiciary is changing and I am a part of that change.” Can you speak a little more about the role of woman in transforming the Kenyan judiciary?
I’m so excited about this. Between 2009-2011 there were no women in the Court of Appeals. But in December of last year they appointed seven judges, five of whom were women. Furthermore, they hired twenty-six judges last August, half of which were women. That’s big for us, because there are many women who don’t seem to make it to that level. So is the change happening? Yes, it is. And it is very progressive.
The system of appointment has also changed and that has contributed significantly to the women who are being appointed. We have a diverse range of young mothers, mothers with elder children and women who have been professionals for most of their lives. They are also hiring more magistrates and I think it’s so important to have a judiciary that is reflective. I like this job, I liked it before these conditions, but now it’s the best place to be.