Capital FM (Nairobi)

9 October 2012

Kenya: AG Seeks Supreme Court Input On Gender Rule

Attorney General Githu Muigai has rushed to court to seal a loophole in Presidential election law.

Nairobi — The Attorney General on Tuesday filed a 30-page petition at the Supreme Court seeking interpretation on attaining the one third gender rule and resolution of disputes in presidential elections.

He asked the Supreme Court to determine how the two issues will be addressed following recent heated debates in the country especially in Parliament.

"The AG has now petitioned the Supreme Court on the interpretation of two issues that has caused controversy in the legal fraternity and country at large; the one-third (1/3) gender rule and the presidential elections. The Attorney-General hopes the Supreme Court will pronounce itself on these two critical constitutional issues," a statement from the AG's office indicated.

His petition came as the country continues to debate how the gender representation will be achieved without the risk of having a bloated Parliament.

In his petition, Muigai argued that that there is no guarantee that the number of nominated persons from the lists provided by political parties will ensure the gender quota is realised.

The petition read in part: "While the Constitution provides how this rule will be achieved for County Assemblies, it is silent on how it will be realised for both Senate and the National Assembly."

Article 81 (b) of the Constitution provides that "not more than two-thirds of the members of elective public bodies shall be of the same gender."

Some legislators have been of the view that it should not be implemented in the 2013 general elections while Muigai has insisted that without implementing the gender rule, Kenya will run into a constitutional crisis.

In an earlier interview, Muigai urged MPs to support a Bill by former Justice Minister Mutula Kilonzo an idea that was also supported by the Prime Minister Raila Odinga.

Mutula's Bill seeks to have parties nominate persons to fill special seats in Parliament and the Senate, to meet the gender representation rule.

The debate was postponed two weeks ago to allow further consultations and develop consensus on how the one third gender rule will be best met.

Muigai further petitioned the court to pronounce itself on the matter of resolution of disputes resulting from round one of the presidential elections.

The AG wants the court to clear the air on whether an unsuccessful candidate in the first round of the presidential election is or is not entitled to petition the Supreme Court to challenge the outcome of the election.

"There exists a lacuna in the Constitution as to what process should be followed to resolve any possible controversy that might arise, for example, challenging the results in the first round of a presidential election should there not be a clear simple majority winner," agued the AG.

He said that he approached the Supreme Court so that the matter is determined to finality saying that he wanted to avoid 'convolution of issues and protracted attempts at their resolution' when the election was only six months away.

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