Nancy Baraza, Ph.D.
First Woman Deputy Chief Justice (Kenya)
By Karen Koech
The Hon. Lady Justice (Rtd) Dr. Nancy Makokha Baraza is a Kenyan lawyer and currently the Head of the Department of Public law, School of Law, the University of Nairobi where she also teaches Jurisprudence and Legal Theory, Family Law, Social Foundations of Law and Development and Access to Justice. She previously served as the Deputy Chief Justice of the Republic of Kenya and the Vice President of the Supreme Court of Kenya, being the first woman ever to hold these positions.
Dr. Baraza was born on 10th September 1957 to the late Nathan Makokha and the late Racheal Nabifwo in the Mt. Elgon area of Bungoma county of the Republic of Kenya. Her late father was a no-nonsense polygamous man with three wives, as was the common practice in her village in those days. Each of his wives was blessed with a good number of children, making the Makokha family a large family. Her late father was a hard-working and enterprising man who ran retail shops and a transport business which plied routes up to Uganda. He was also an astute farmer growing coffee, vegetables, and cereals for the commercial markets. With this, he was able to bring up his children reasonably comfortably and ensure their education.
Mt. Elgon area is one of the most neglected and disadvantaged areas in the country in terms of infrastructure and social amenities. This is an area that did not have electricity until 2019 and had no tarmac road until 2020. The area is also characterized by occasional and most times tragic clashes over land, a situation which resulted in Dr. Baraza and other villagers spending chilly nights in the bush to hide away from marauding attackers who killed all in their way. Although the Makokha family was ‘well off’ compared to most other families around, Dr. Baraza was shaped by the impoverished material conditions of her surroundings, with women bearing the brunt of poverty and the effects of a patriarchal social system. There was rampant wife battering every evening in most homes and the clear division of roles in the households which left women to carry the heavy burden of farm and household chores. This left her with a burning desire to one day change this situation.
Dr. Baraza began her early education in a local primary school called Chesikaki, a school started and funded by the Friends Church, aka the Quaker Church. Her love for education saw her perform well and proceed to secondary and higher education in which she performed well enough to be admitted to the prestigious University of Nairobi faculty of law to undertake her undergraduate studies in law in 1977. Dr. Baraza never knew that she would end up studying law. She did not even know that such a course existed. It was through her Australian English teacher at her high school who advised her to choose law since it was for ‘bright’ students. Otherwise, her parents had hoped she would become a teacher like many of her siblings. After joining the faculty of law, she discovered that law was the path that was going to enable her to fight against the patriarchal system that disadvantaged women not just in her village but elsewhere.
In 1981, Dr. Baraza got married but the marriage ended up in a divorce. This left her to bring up her two sons, both of them currently aspiring lawyers. Upon graduation, from the University of Nairobi in 1980, she preceded to the Kenya School of Law for a Diploma in Legal Studies from where she graduated in 1981, leading to her admission to the Roll of Advocates in 1982. In the same year, she joined the law firm of Kilonzo and Company Advocates as a litigation assistant, cutting her teeth in litigation. Later in 1987 she, together with a colleague, formed the law firm of Kioni, Baraza and Company Advocates, the first-ever women law firm in the country. This encouraged other women lawyers to open up law firms in the country. She focused on litigation while her partner attended to commercial and conveyancing work.
Being a litigation lawyer exposed her to the challenges that the Kenyan judiciary faced – delayed cases, corruption, shortage of judges, overworked and outrightly unpleasant judges which became clear to her. She could have enjoyed litigation work had it not been for these challenges, something that made her develop a keen interest in the problems of the judiciary. It is this experience that saw her apply for the post of Deputy Chief Justice of the Republic of Kenya when the post opened up in 2010 upon the enactment of a new Constitution. She wanted to and hoped that she would contribute to the transformation of the judiciary to become more responsive to the needs of litigants and the general citizenry.
Practicing law in the courts exposed Dr. Baraza to the brutal realities of poverty and lack of access to justice for the majority of women who faced issues of maintenance for themselves and their children when their husbands failed to do so. It is this reality that forced the women lawyers in Kenya, including Dr. Baraza, to form the Kenyan Chapter of the International Federation of Women Lawyers (FIDA) to help poor women and their children to access justice. From 1995-1998, she served as the president of FIDA, and today, she is rated as the most effective President that the organization has had. During this period, issues of social, economic, and legal rights of women were brought to the fore in a country that had little recognition for women and was completely unaware of their problems.
Programs such as legal aid and gender-based violence were initiated. FIDA Kenya also acquired international accreditation to UN committees such as the CEDAW Committee. These opportunities saw Dr. Baraza participate in many international conferences such as the 1993 VIENNA Conference that saw women’s rights recognized as human rights and the 1999 Beijing Conference which shaped the Beijing Platform for Action, a blueprint for women’s empowerment around the world. Dr. Baraza, in conjunction with other women lawyers in Africa and especially from Nigeria, Ghana, and Uganda, helped to set up women lawyers’ federations in other countries such as Tanzania, Ethiopia and Zambia purposely to empower women in those countries.
Her desire for social and legal reforms saw Dr. Baraza appointed as a Commissioner of the Constitution of Kenya Review Commission (CKRC), a body that was mandated to draft a new constitution for the Republic of Kenya after collecting and collating views from Kenyans around the country. Dr. Baraza was privileged to chair the thematic committee on the Bill of Rights. The current Bill of Rights in the Constitution of Kenya, acknowledged as one of the most robust in the world, is owed to this committee. It contains some of the most elaborate rights for women that were unknown in Kenya’s constitutional history. In 2007, Dr. Baraza was appointed to serve as the Vice-Chairperson of the Kenya Law Reform Commission, a statutory body that is charged with reviewing and reforming the law in Kenya. During this period, Dr. Baraza succeeded in having major reforms undertaken in marriage law resulting in the enactment of the Marriage Act in 2014. This law has had positive implications for the equality of women in marriage and also for safeguarding the rights of women in polygamous unions (which is a reality in Kenya) who have over the years suffered disadvantage and destitution after the demise of their husbands. She also oversaw the drafting of the Protection Against Domestic Violence Act of 2015, which is a law that recognizes the hitherto unrecognized vice of domestic violence and its impact especially on women, and offers reliefs and sanctions against the vice.
She also oversaw the drafting of the Matrimonial Property Act enacted in 2013, which safeguards wives’ rights in the division of matrimonial property. She also played a pivotal role in the drafting and enactment of the Sexual Offences Act of 2006, a piece of legislation that protects women against sexual violence. In 2011, Dr. Baraza was appointed the first Deputy Chief Justice of the Republic of Kenya, through a highly competitive public interviewing process. During the period she served in this capacity, she and a team of experts put together the Judiciary Transformation Framework, an integrated and comprehensive framework that targeted strategic institutional reforms that would see an invigorated judiciary that was responsive to the needs of Kenyans. It was launched in 2012 under the leadership of the then Chief Justice, Dr. Willy Mutunga. It led to the massive transformation of the judiciary, including the attraction of funds from the government and the world bank to an institution that had previously been starved of finances. She resigned from this post after a much- publicized security mishap with a security guard at a shopping mall as she rushed to purchase medicine for her son. She argues that part of the attacks she got for the incident were gender- based as indeed other senior members of the government, including the Judiciary itself have committed worse and more heinous offenses but have not suffered her fate.
Dr. Baraza has won several accolades. In 2008, she was awarded the State award of Order of Grand Warrior (OGW) by the President of the Republic of Kenya for her contribution towards humanity. In 2004, she was declared a finalist nominee for the Martin Luther King Junior Award, an award organized under the auspices of the United States of America/Kenya Association then run by the Embassies of the United States of America in African countries for her role in agitating for peaceful change in society. In 2005, she won the FIDA Kenya Award for Outstanding Woman for her contribution towards the empowerment of women. In 2011, she was awarded the Best Achieving Woman award by FIDA Kenya for her success in clinching the hotly contested position of first Deputy Chief Justice of the Republic of Kenya and Vice President of the Supreme Court of Kenya and for setting the bar for women in high positions of governance. Apart from her formal legal work, Dr. Baraza has mentored many young people in schools and social groups and especially women, girl-children, and vulnerable people around the country, something she continues to do.
Dr. Baraza is without a doubt one of the pioneer women in the legal profession in Kenya as she ventured into the legal field when it was predominantly male-dominated. This pioneering spirit is clearly evident throughout her career as she co-founded the first female-owned law firm in Kenya, participated in the formation of FIDA Kenya, spearheaded and participated in the enactment of various laws especially those that sought to protect the previously ignored rights of women as well as the 2010 Constitution. A remarkable pioneer role is in her becoming the first female Deputy Chief Justice of the Republic of Kenya and the Vice President of the Supreme Court of Kenya. All these just but scratch the surface of the social and political transformation in Kenya that the former Hon. Lady Justice has and still is accomplishing as a frontrunner of women in the legal profession in Kenya.