9 November 2012

Kenya: First Hurdle Cleared in Gender Rule Case

THE Supreme court yesterday said it has the power to hear the one-third gender rule case. The Attorney General had been requested to give a guideline on the matter.

The five judges of the Supreme Court ruled that it can rightly give its opinion on the matter because the issues raised touch on the National Assembly and affect the county governments.

The court can only give its opinion on matters touching on county governments, when the matter has been sought by a state organ and matters that are of great public interest.

A number of non-governmental organisations had objected the case being heard by the court, arguing that the matter was about interpretation of the constitution, which falls within the jurisdiction of the High Court.

And after agreeing to hear the case, Chief Justice Willy Mutunga together with judges Philip Tunoi, Jacktone Ojwang, Smokin Wanjala and Njoki Ndung'u, allowed a number of NGOs to participate.

However, the NGOs including FIDA-Kenya, the Centre for Multi Party Democracy and the Kenya Human Rights Commission, had to show why their input is important in the case.

The court further directed senior Deputy Solicitor General Muthoni Kimani to respond to submissions filed by the parties that have been admitted in the case, who include the Independent Electoral and Boundaries Commission, the Commission on the Implementation of the Constitution and Commission on the Administration of Justice.

In the submissions, CMD-K through lawyer Stephen Mwenesi, wants the court decline to give its opinion on the case arguing that it "cannot purport to give final and conclusive decision merely because the 2013 elections loom large".

CMD-K has also proposed a number of formulas that can be used to achieve the gender question without amending the law. Among the proposals is 25 per cent rotational formula that involves selecting 72 constituencies (25 percent of the 290 constituencies), which shall become the gender constituencies. Every four constituencies in that order are coded and pooled.

And for every four in the pool, one of them will be randomly selected to be gender constituency and where candidates from the marginalised gender can contest. The formula has, however, been rejected since voters will not pick candidates of their choice.

The AG, who is the chief legal adviser of the Government, moved to the court after Parliament failed to agree on the rule. The Constitution requires at least one-third of the members of the legislature be of one gender.

The AG argues that there there is an ambiguity in the Constitution as a result of Article 81(b) which provides that "not more than two-thirds of the members of elective public bodies shall be of the same gender". The case will be heard on November 20.

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