Kenya's new Constitution drastically opened a long overdue space for women to participate in leadership and decision-making through the provision of minimum gender representation for all elected and appointed bodies.
Tuesday's Supreme Court ruling was at best a subversion of the new constitution and a denial of justice to the majority of the women who looked to the forthcoming elections with much optimism.
The court's verdict was that the one third gender rule should be implemented progressively as it could not be enforced immediately. The decision came after Parliament failed to put in place mechanisms to ensure that the constitutional provisions on gender representation were realized in the coming elections.
According to Article 81(b) of the new constitution, not more than two-thirds of the members of elective public bodies shall be of the same gender.
The rule was meant to increase women's participation in politics and based on this rule, at least 117 Members of Parliament would have been female. Now the court's decision means that males are still likely to dominate the next Parliament.
Chief Justice Dr. Willy Mutunga is the only one who differed with the majority ruling, arguing that "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."
The Constitution maintains a one third requirement for either gender in elective bodies giving women of Kenya at least a third minimum in elective public bodies.
The Constitution ensures that gender equality is maintained in political parties by providing a basic requirement for political parties to respect and promote gender equality.
Political parties should thus devise mechanism to ensure that women are accorded a fair deal to participate in the electoral processes regardless of the Supreme Court ruling on this matter.
Article 91 (f) of the Constitution provides that Parliament shall formulate laws to promote the representation of women, persons of disabilities, ethnic and other minorities and marginalized communities in Parliament.
Parliament has delayed in actualizing this and as its term is elapsing, women rights groups and organizations went to court seeking redress on this matter, hence the Supreme Court ruling that has now dimmed women hopes.
This case was first taken to the High Court by civil society lobby groups but was in October filed at the Supreme Court by the Attorney-General Githu Muigai who sought advice on the application of the constitutional threshold for gender representation. The AG, who is the chief legal adviser of the government, moved to court after Parliament failed to agree on the one-third gender rule.
In his application, the AG had argued that there is 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".
Article 100 of the Constitution ensures that women and men will have the right to equal treatment and opportunities in political, economic, cultural and social spheres without discrimination.
Allowing elections to take place, before proper mechanism are put in place to ensure equality for men and women and hoping that the new government and parliament will actualize this is an exercise in futility.
Article 27 (3) of the constitution spells out that four out of the five judges hearing the case assented to the ruling. The fifth judge, Chief Justice Willy Mutunga refused to support the decision stating that there is no reason why the one-third gender rule cannot be applied in March 2013. This was too little, too late and it means that in spite of the president of the Supreme Court dissenting, the ruling will have to hold.
It is important to remember that in the 2010 Census results, women are reported to be slightly more than men in Kenya. However, this large population of women is invisible in key decision-making processes, particularly in governance - at both local and national level.
The need for more women in political leadership is predominant with the new constitution in place. Currently of the 222 Members of Parliament, only 22 are women - with only 16 having been elected while six are nominated
The need for an engendered process cannot be over-emphasized due to the fact that men and women leaders have been known to have varying political interests, and consequently different practical strategic needs.
It is a shame that despite Kenya being the economic giant of the East African region, it remains a dwarf in women's political representation.
Recent gender equity reports indicate that Kenya stands at 9.8% against Rwanda's 56.3%, South Africa 42.3% , Tanzania 36% and Uganda 35%.
The need to uphold constitutional promise of the one-third principle for the benefit of the entire Kenyan society cannot be absconded now when elections are only three months away.
Article 27 (8) of the new constitution provides that the state shall take legislative and other measures to implement the principle that no more than two-thirds of the members of elective or appointive bodies shall be comprised of one gender. This the 10th Parliament must deliver as its last gift to Kenya.
The writer is Peace and Media Coordinator for Peace Initiative Kenya project, International Rescue Committee- Kenya