Capital FM (Nairobi)

13 December 2012

Kenya: Lobby to Take Gender Row to EA Court

The Center for Multiparty Democracy - Kenya (CMD) now says it will move to the East African Court of Justice to seek further interpretation of the gender rule provision, following Tuesday's ruling by the Supreme Court that the constitutional requirement must not be followed in the 2013 polls.

CMD chairman Justin Muturi said on Thursday that it was possible to achieve the gender quota if Parliament passed a Constitutional Amendment Bill that is pending in the House.

Muturi maintains that the Supreme Court should have given the formula for attaining the gender quota if the judges strongly held that it could be achieved by 2015.

"As CMD, we will move to the East African Court of Justice to force Kenya to observe gender equality since it is the only country within the East African Community that has not done so," said Muturi in the company of CMD board members.

The Supreme Court on Tuesday declared that the next National Assembly and Senate do not have to immediately abide by Article 81 (b) of the Constitution which says not more than two-thirds of their members should be of the same gender.

But CMD argues that it will be a breach of the Constitution if the gender principle is not realised in the March 2013 elections because it is part of the provisions of the Bill of Rights.

"The attainment of the gender principal is not just a matter of the Judiciary; it goes to the very core foundation of the country. Failing to provide for a mechanism to achieve the requirements renders the holding of elections null and void and against the Constitution that guarantees the same election," he said, adding that they supported the position taken by Chief Justice Willy Mutunga on the gender rule.

Muturi said that CMD will also write to the EAC Secretariat to seek the expulsion of Kenya until it achieves a formula to implement the constitutional requirement.

The CMD chairman who spoke at a city hotel after a board meeting has also warned of street protests if Parliament continues to sit on the Bill that aims to provide a formula on how the gender principle will be achieved.

"We will not rest at the opinion of the Supreme Court; we are urging all Kenyans to protest particularly against the procrastination exhibited by Parliament in passing the constitutional amendment and also in protest against the court ruling," he insisted.

Despite an overwhelming four to one majority decision; Chief Justice Willy Mutunga who gave a dissenting opinion said that the gender rule should be in effect when the National Assembly and Senate members are elected in the next General Election.

"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 dissenting opinion by the Chief Justice has received support from The Commission for the Implementation of the Constitution (CIC), The Kenyan chapter of the Federation of Women Lawyers (FIDA) and the Political Parties Forum.

FIDA Executive Director Grace Maingi expressed dissatisfaction at the Supreme Court's ruling saying the gender rule was one of the major reasons why Kenyan women voted in favour of the Constitution in 2010.

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