Nairobi — The Supreme Court has declared that the next National Assembly and Senate do not have to immediately abide by Article 81 (b) of the Constitution that says not more than two-thirds of their members should be of the same gender.
In a ruling delivered by a majority on Tuesday afternoon and read by Justice Jackton Ojwang, Kenya's highest court declared the gender rule will be effected progressively.
Justice Ojwang said the time frame for the implementation of the gender rule was clearly spelt out in the Constitution's Fifth Schedule giving the legislature up to five years from the promulgation date.
"We are of the majority opinion that legislative measures for giving effect to the one third to two thirds gender principle under Article 81 (b) of the Constitution in relation to the National Assembly and the Senate should be taken by the 27th of August 2015," read Justice Ojwang.
Chief Justice Willy Mutunga however differed with the four judges who held the majority view saying the gender rule should be in effect when the National Assembly and Senate members are elected into office in the March 4, 2013 elections.
"Parliament by its silence cannot deprive the women of this country the right to equal representation. In the event that Parliament fails to implement that principle any of the elected houses will be unconstitutional," he opined.
The Chief Justice lamented that the percentage of women in legislative positions in the country falls behind that of other East African countries in spite of the fact that they account for more than half of Kenya's population.
The Chairman of the Commission for the Implementation of the Constitution (CIC), Charles Nyachae, shared Mutunga's sentiments as has the Constitutional Implementation Oversight Committee Chairman Abdikadir Mohammed in the past.
"My own persuasion and the persuasion of CIC would be in line with the minority opinion given by the Chief Justice," argued Nyachae.
FIDA Executive Director Grace Maingi expressed dissatisfaction at the majority opinion saying the gender rule was one of the major reasons why Kenyan women voted in favour of the Constitution in 2010.
"Women being able to be represented by themselves within Parliament is essential for development of this country," she said.
The ruling was issued following an application by Attorney General Githu Muigai seeking an interpretation of the rule after Parliament failed to enact it.
The Attorney General had also sought direction on the resolution of disputes following the first round of presidential elections.
The Supreme Court unanimously agreed that it has jurisdiction over disputes that might erupt in the election of a president and that a run off would take place only within 30 days of the resolution of the dispute.