By Isaiah Lucheli
The controversial one-third-gender rule for elective positions provided for by the Constitution will not be applied in the March 4 General Election.
Instead, it will be implemented progressively up to 2015, the Supreme Court ruled Tuesday.
The decision by the highest court in the land immediately sparked sharp reaction from women leaders, with two Nominated MPs disagreeing and terming it unfortunate.
“It is unfortunate that they (Supreme Court judges) have said it will be implemented progressively; this decision will lock out many women who had organised themselves to be nominated by their political parties,” said Nominated MP Shakila Abdalla. She said authorities should have explored other options to meet the gender rule, including nomination by political parties and setting aside the 80 new constituencies for women.
Also raising her voice was another nominated MP Millie Odhiambo-Mabona, who disagreed with the ruling but said the court had the powers to make the interpretation.
“They have chosen expediency over the law. I disagree with them, but we gave them the powers to determine such cases, so we can disagree with them but still respect their ruling,” said Ms Odhiambo-Mabona.
The ruling — by Chief Justice Willy Mutunga and Justices Jackton Ojwang’, Philip Tunoi, Smokin Wanjala and Njoki Ndung’u — was read by Justice Ojwang’.
However, Chief Justice Mutunga — who is also the President of the Supreme Court — dissented, saying the ruling flew in the face of the struggle by Kenyan women for gender equality.
Speaking in Parliament last night, Chepalungu MP Isaac Ruto backed the ruling, but warned the electorate against using it as an excuse not to elect women in the coming elections.
He, however, insisted that the gender rule must be attained within specific timelines.
“The Supreme Court has done the right thing, the implementation should be progressive and I also agree with them that in 20 years, we would have succeeded because there is a sunset clause on the women representation in the requirement,” said Mr Ruto.
The AG had also sought the Supreme Court’s advisory opinion on its jurisdiction at the several stages in the presidential election, especially with regard to disputes arising in the event that there is no clear winner in the first round before a run-off.
In the ruling, the five-judge Bench was unanimous that disputes over the first round of the presidential election — for which provisions have not expressly been provided for in the Constitution — would be resolved expeditiously within practical timelines and in the event of a second round, it should be within 30 days.
The judges noted that there were potential disputes from the presidential election other than those mentioned in Article 140, which states:
(1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.
(2) Within 14 days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.
(3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within 60 days after the determination.
“The presidential election disputes should in their whole range be impartially and expeditiously resolved by the Supreme Court as the ultimate judicial body within practical timelines to be read into Article 138 (5) and in our opinion in the event of a second round it should be within 30 days,” they ruled.
And on the gender rule, the judges said Article 81(b) could not replace the specific provision of Article 97 and 98.
“As article 81(b) having not ripened into specific, enforceable right as far as the composition of the National Assembly and the Senate are concerned, it follows — and this is the burden of our opinion on this matter — that it cannot be enforced immediately,” they said.
They added that the effect of the gender rule was amenable only to progressive realisation even though it was immediately applicable in the case of County Assemblies under Article 177.
“Bearing in mind the terms of Article 100 (on promotion of representation of marginalised groups) and of the Fifth Schedule (prescribing timeframes for the enactment of the required legislation), we are of the opinion that legislative measures for giving effect to the gender rule and in relation to the National Assembly and the Senate should be taken by August 27, 2015,” they ruled.
The judges directed the High Court to issue appropriate orders and directions, noting that their verdict was in accordance with the terms of Article 261(6), (7), (8) and (9) under the Transitional and Consequential provisions.
The one-third-gender rule requirement puts at 117 the minimum number of MPs from either gender. The issue generated contentious debate ahead of the March 4, 2013 General Election, particularly on how the number will be achieved.
Civil society groups dealing with gender and political activism were enjoined in the suit as friends of the court (amicus curiae).
They included the Federation of International Women Lawyers of Kenya (Fida-Kenya), the Centre for Multiparty Democracy, Katiba Institute and the Kenya Human Rights Commission.
State bodies enjoined as parties to the case included the Independent Electoral and Boundaries Commission (IEBC), the National Gender and Equality Commission and the Commission for Administrative Justice.