By Lillian Aluanga-Delvaux

Political parties, the East African Court of Justice, and the Independent Electoral and Boundaries Commission (IEBC) are the next battlefronts in the push to have the gender rule applied in the March 4 General Election.

Last week’s ruling by the Supreme Court to have the one-third gender rule implemented progressively has met sharp criticism from the women’s movement, which has vowed to explore other avenues to ensure the provision is met in the March elections.  Chief Justice Willy Mutunga held a dissenting view and proposed that the two-third gender principle be implemented.

The majority opinion of the court, however, favours a progressive implementation that will see at least one- third of all elective positions held by women by 2015. Attorney General Githu Muigai had sought the Supreme Court’s opinion on the matter that generated debate in Parliament where two Bills on the same are pending.

Those pushing for implementation of the rule in next year’s polls point to Article 81 of the Constitution, which states that no more than two thirds of the members of elective public bodies shall be of the same gender.

Advisory opinion

They also argue that the Supreme Court’s advisory opinion contravenes the Constitutional provisions on non-discrimination, and flies in the face of efforts made by women over the years for greater representation. Those pushing for progressive implementation, however, argue the principle cannot be achieved in the March 2013 elections.

“We are considering going to the East African Court of Justice and are calling on political parties to take deliberate steps in ensuring women’s participation in next year’s elections,” says Women’s Political Alliance chair Daisy Amdany.

According to Amdany, the Supreme Court ‘misread’ the Constitution, which through Article 27(6) places the demand of coming up with legislation and using other mechanisms like affirmative action to improve women’s representation, on the State. “We acknowledge that the Judiciary is an independent body and cannot be directed by other arms of Government. But the legislature is equally independent and can provide for realisation of the two thirds gender principle by passing the pending Bills,” says Amdany.

She, however, notes that this would need political will, which has so far been lacking, leading to the impasse that drove the AG to seek an opinion on the matter. Her view appears to be echoed by arguments fronted by the Commission on Administrative Justice, through chairman Otiende Amollo.

In his argument, Amollo said in principle, the gender equity rule should be given immediate effect. He, however, points to imprecision in the language of the Constitution on the same, but invokes Article 100, which provides that parliament enact legislation to promote representation of women, youth, persons with disabilities, minorities and marginalised communities. According to Amollo, Parliament should, within certain phased out times frames, act to give meaning to the gender equity principle.

Federation of Women Lawyers (Fida)-Kenya’s Mariam Kamunyu says it is important to note that the Supreme Court’s ruling only applies to the National Assembly and Senate and not the County assembly.

Pending Bills

Kamunyu, a programmes officer in charge of elections, points to legal options across Kenya’s borders that can be explored, as well as passage of the pending Bills in parliament to realise the gender principle.

“The Supreme Court is the highest court and its decision cannot be challenged in any other court locally. But the East African Court of Justice and African Commission are options that remain open to Kenyan women pursuing justice on this matter,” she says.

The Centre for Multiparty Democracy had, in earlier media reports, threatened to file a case at the East African Court of Justice seeking further interpretation of the gender rule.

CMD Chairman Justin Muturi also made reference to proposals to write to the East African Community seeking to have the body suspend Kenya’s membership until the gender rule is fully implemented.

In his argument to the court, AG Githu Muigai, points to provisions regarding membership of the legislature against the principles of governance as declared in the Constitution.

Article 97 prescribes membership of the National Assembly that includes 290 members elected in single-member constituencies, 47 elected women representatives from each county, 12 special interest group members nominated by political parties, and the Speaker. The Senate on the other hand (Article 98) comprises 47 elected members representing each county, 16 women nominated by political parties, two members – a man and a woman representing youth, two members – a man and a woman representing persons with disabilities, and Speaker.

The AG goes on to cite perceived inconsistency or potential inconsistency between the equality principles contained in Article 27 (on equality and freedom from discrimination) and specific provisions on membership of the National Assembly and Senate as reasons for seeking the court’s interpretation on the matter.

Zebra principle

Former Kituo Cha Sheria Executive Director Priscilla Nyokabi says besides the 47 women county representative positions provided by the Constitution, political parties must ensure the ‘Zebra principle’ is applied in sharing the 12 nomination slots available in the National Assembly. The Zebra principle refers to the principle applied when drawing up party lists, which has the slots, alternated between the genders.

“The battle now goes to the political parties and women contesting various seats. But IEBC also has a role to play. It should take the Supreme Court’s position as an advisory opinion but ensure that party lists are gender compliant,” says Nyokabi who is vying for the Nyeri County Women Representative seat on a TNA ticket.

Kamunyu says there is still time to put the gender rule back on track but adds that it would need cooperation of political parties. “Political party primaries are coming up and they (parties) have a chance to include more women. We want to work with political parties and we will be advising women to move to those parties that address this agenda,” says Kamunyu.

Kamunyu faults IEBC, which she says ‘has abdicated its role in actualising the two thirds gender principle’. In his argument for dissention, Mutunga observed that ‘Kenya, as an anchor state in the Eastern and Horn of Africa would demean its status and that of its Parliament if the patriotic duty of guaranteeing gender equity and equality was not seen in the region as one of its priorities’. Women’s representation in Uganda ranks at 35 per cent, and 36 per cent in Tanzania. Rwanda, the only country in the world with a female majority, has seen representation of women in its lower house (Chamber of Deputies) rise from 17 to 56 per cent between 1994 and 2008.