Before becoming a judge of the Supreme Court of Kenya in June 2012, Susanna Njoki Ndung’u was known for leaving an indelible mark during her stint as a nominated MP between 2002 to 2007. Much as she seemed like a natural – finding her place at the highest levels of Kenyan politics and marshalling parliament to pass the groundbreaking Sexual Offences Act of 2006 – hardcore politics wasn’t necessarily Ndungu’s first choice – she thought hers was a political cameo – but as she worked one political-related job after another, Ndung’u was slowly sold to the transformational power of politics.
Upon graduation from the University of Nairobi with an LLB and getting admitted to the bar, the Kenya High School almnus found her footing in the public legal space as a counsel working at the office of the Attorney General. One thing led to another, and soon enough Ndung’u left the AG’s chambers to pursue her Master’s in Human Rights and Civil Liberties from the University of Leicester in England.
On returning from the UK, Ndung’u joined the Institute for Education and Democracy as the program officer in charge of civic education. This was her first real contact with the who-is-who of politics. By the time she was joining the United Nations High Commissioner for Refugees (UNHRC) in 1995 as the National Protection Officer and later the same year, the Organisation of African Unity (now African Union) as a Political Analyst in Conflict Management, the politics bug was starting to bite.
However, Ndungu’s ultimate gravitational pull into politics happened at Safari Park Hotel, the then rendezvous for the Inter-Party Parliamentary Group (IPPG) which was looking to enact piecemeal electoral and other reforms before the 1997 general election. It was in interacting with those in these circles that in 1996, Ndung’u succumbed and joined the Social Democratic Party (SDP), which was readying itself to front Charity Ngilu for president. SDP’s social democratic ideals mirrored Ndung’u’s own beliefs, similar to those espoused by Ngilu. Ndung’u joined Ngilu’s presidential campaign.
And as Ngilu, Mwai Kibaki and Michael Kijana Wamalwa came combined forced before the 2002 general election in a bid to forge opposition unity, Ndung’u found herself at the centre of the action, keen on lending a hand to what was promising to be Kenya’s new dawn, with a real possibility of relegating independence party KANU to the annals of history. Ndung’u was particularly enticed by the promise of a new constitutional order, but beyond the naivatte, she also understood how power works, and knew she couldn’t operate from the fringes and expect to have an impact at the centre.
By the time nomination slots for the united opposition’s National Rainbow Coalition (NARC) were being discussed, Ndung’u’s name was on the table. She had done both the party work and the backroom lobbying. Kenya was about to be introduced to one of its most astute women legislators.
From day one, Ndung’u came face to face with the disenfranchisement of women in parliament, which at the time had only a measly 18 women. Tabling motions on women issues was not only unheard of. It was unthought of Ndung’u and a crop of recently-elected women MPs tried tabling a motion to zero rate tax on sanitary towels. Experiencing little support from male MPs, Ndung’u learnt from the more seasoned women MPs that such matters were to be discussed away from male MPs, and even further away from chambers. Still, Ndung’u was right. Influencing politics from the periphery was impossible.
Ndung’u devised a plan to pass the bill. She started by approaching male MPs, showing them just how much the women in their lives spent on sanitary towels vis-à-vis what they would save if the tax regime on sanitary towels was revised. The male MPs were convinced and in 2004 parliament repealed the country’s value added tax on sanitary towels and tampons. Ndung’u wasn’t stopping.
Next was the Sexual Offenses Act which materialized in 2006.
Confronted with a marked increase in reported cases of rape and child sexual abuse, Ndung’u tabled a a motion in December 2004 seeking permission to bring a Private Members Bill on sexual offenses. The bill sparked vigorous debate within and outside parliament, and was dubbed the “castration bill.”
Ndung’u was undeterred. She joined forces with the likes of MP Adelina Mwau and various civil society allies and campaigned for the bill, which eventually became law in 2006. For these and other troubles, Ndung’u received national and international recognition, including being named the UN Person of the Year in Kenya 2006 and the Jurist of the Year by the International Commission of Jurists (ICJ). Ndung’u similarly spearheaded amendments to the Maternity and Paternity Rights in the Employment Act 2007 – to allow for more accommodative maternity and paternity conditions, and led in seeking amendments to the Refugee Bill – to make refugees and asylum seekers find better landing.
Politics and accolades aside, these matters were personal to Ndung’u.
In 1986, aged 20, Ndung’u—to the bemusement of bystanders— chased a man along Nairobi’s busy Kimathi Street to the point of almost getting knocked down by a bus. The man had touched Ndungu’s bum, and Ndung’u wanted to execute her revenge there and then. Not many 20 year olds brought up in the leafy suburbs of Karen could chase after someone in downtown Nairobi, but Ndung’u wasn’t one to be limited by her gender or social class. If you came for her, she brought the fight to you.
Something in Ndung’u snapped that day. She had had enough.
For years, sexual harrassment and violence against women had been sources of pain and suffering for Ndung’u. As a 12 year old, a church elder had attempted putting his hand up Ndung’u’s skirt on their drive from church. At 16, her father’s friend almost grabbed Ndung’u’s breasts. And throughout her childhood, Ndung’u’s father had on numerous occasions gotten violent towards her mother, forcing them to seek refuge in the cowshed in the deep of the night. The Kimathi Street assault therefore became Ndung’u’s ground zero, setting forth her long mission to create safer spaces for women.
While serving as MP, one of the four parliamentary committees which Ndung’u served in included the Select Committee on the Constitution of Kenya, which began laying ground for the making of the Constitution of Kenya 2010. It was therefore no surprise that in 2010, three years after leaving parliament, Ndung’u became a member of the Committee of Experts (CoE), the technical agency which midwifed the new constitution. That new constitution created the Supreme Court, which is where Ndung’u landed in 2012. Susanna Njoki Ndung’u had come full circle, or so it seemed.
At the Supreme Court, Ndung’u hasn’t shied away from either coming across as a contrarian or from siding with the minority. For someone who has been a member of the court since its inception, Ndung’u is one of the justices who holds the record of never having voted to nullify a presidential election, having voted against the nullification of the ultimately nullified 2017 presidential election.
Ndung’u’s other memorable dissent was during the Building Bridges Initiative case, where she and one other judge, Isaac Lenaola, disagreed with the High Court and Court of Appeal verdicts that faulted President Uhuru Kenyatta for being involved in an executive-driven constitutional amendment effort disguised as a people’s popular initiative to change the constitution. Ndung’u argued that the Head of State enjoys all constitutional rights and freedoms like any other Kenyan citizen and wasn’t prohibited from exercising such rights and freedoms merely by the fact that he occupied Kenya’s presidency.
For now, all eyes are on the 57 year old Ndung’u, self-described adventurous being, a spirited adrenaline junkie who white-water-rafts, bungee-jumps, go-karts and plans to sky-dive and take part in the safari rally. Will Ndung’u elect to court some adrenaline and do a first for herself by nullifying William Ruto’s declaration as president-elect, or will she opt to stay on brand and uphold the election?