The Star (Nairobi)

12 December 2012

Kenya: Gender Rule Will Be Gradual, Says Court

Photo: Daily Nation
Judges taking the oath of office (file photo).

CJ Willy Mutunga chat with Supreme court judges Philip Tunoi and Smokin Wanjala at the supreme court during the appeal of a case of DCJ Nancy Baraza yesterday Photo/Charles Kimani

THE Supreme Court yesterday ruled that the one-third gender rule should be achieved progressively dealing a blow to champions of women's' rights who wanted the requirement implemented in the general election.

A majority decision by the Judges of the country's highest court said Article 81(b) of the Constitution, which says not more than two-thirds members shall be of the same gender, will not be applicable in the coming poll.

The judges said the rule will be achieved by August 27, 2015. Justices Philip Tunoi, JB Ojwang, Smokin Wanjala and Njoki Ndung'u said the principle cannot be enforced immediately but should be achieved progressively.

"Bearing in mind the terms of Article 100 (on the promotion of representation of marginalised groups) and the Fifth Schedule (Prescribing time-framers for the enactment of required legislation), we are of the opinion that legislative measures for giving effect to the one-third- to two-thirds gender principle, under Article 81(b) of the constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015," the judges said.

But in a dissenting opinion, Chief Justice Mutunga said the two-thirds gender rule should be applied in March 4 election. He said although Parliament had a short notice before it is dissolved, there is time to finalise the respective bills before dissolution "to give the women of Kenya the one-third gender representation in Parliament and Senate".

The CJ said the women in the country have been disenfranchised from the political arena since 1963. He said the constitution cannot provide the right to women vying for county seats and deny those vying for seats in Parliament and the Senate.

"National values embodied in the Constitution would be subverted if the two-thirds gender rule were subjected to the progressive realization principle," said Mutunga.

But four other judges carried the day saying, "The effect of Article 81(b) of the Constitution is amenable only to progressive realisation- even though it is immediately applicable in the case of county assemblies under Article 177."

Attorney General Githu Muigai had sought the opinion of the Supreme Court saying the Constitution appears to be "giving with one hand and taking away with the other" as Article 81(b) of the constitution states that not more than two-thirds members shall be of the same gender, while Article 27(6)-was proposing legislative and other measures, including affirmative action, to be put in place to achieve the rule. He also said that Article 100 has directed Parliament to enact legislation to promote the representation of women among other marginalised group.

The Commission on the Administration of Justice, the National Gender and Equality Commission and the Center for Multi Party Democracy had argued that the principle must be achieved in the next election.

The majority judges said the said Article standing alone as general principle cannot replace the specific provisions of Article 97 and 98, "not having ripened into a specific, enforceable right as far as the composition of the National Assembly and Senate are concerned".

"If the measures contemplated to ensure its crystallisation into an enforceable right are not taken before the elections of March 4, 2013, then it is our opinion, Article 81(b) of the Constitution will not be applicable to the said elections. The effect is that Article 81(b) of the constitution is amenable only to progressive realization- even though it is immediately applicable in the case of county assemblies under Article 177," said the judges.

Meanwhile, the court said it will establish specific and efficient timelines to guide the hearing of first-round of presidential election disputes.

The court said disputes arising from the second round of presidential election will be resolved thirty days after those from the first round have been resolved.

In the advisory opinion, the five judges including Chief Justice Willy Mutunga broadened disputes that will be resolved by the court to include all aspects during the conduct of the general election.

In a unanimous opinion, the Judges said the validity of the presidential election cannot be limited to only after the administrative pronouncement of the final result, "but any stage in the critical steps of the electoral process". The judges said it was clear to them that there are potential disputes other than the ones mentioned in Article 140 of the Constitution.

"A presidential election, much like other related assembly elections, is not lodged in a single event, it is, in effect, a process set in plurality of stages," said the Judges. The judges said that Article 137 of the Constitution provides for qualifications and disqualifications for election as president and which touches on the tasks of agencies such as political parties which deal with early stages of nomination.

The judges agreed that presidential election disputes, in their whole range, should be impartially and expeditiously resolved by the Supreme Court as the ultimate judicial body, within the practical time-lines.

Attorney General Githu Muigai had sought the opinion of the court saying that there exists a lacuna in the Constitution as to what process should be followed to resolve any possible controversy that might arise challenging the results in the first round of a presidential election should there not be a clear simple majority winner.

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