AG, groups fight over gender case

The dilemma of achieving the two thirds gender parity in elective posts persisted on Tuesday as various institutions differed with the Attorney-General over his move to seek the Supreme Court’s advisory opinion.

Attorney-General Githu Muigai told the Supreme Court that his office was unable to come up a way of effecting affirmative action in the National Assembly and the Senate, and that the court was the final determinant on how to achieve the gender balance.

He argued that whereas the Constitution provides a limit for gender representation, it was silent on how the provisions are to be achieved.

“The Constitution contains a lacuna, inconsistencies and outright contradictions by giving one thing on one Article and taking it away in another,” he said. He submitted that the provisions on gender parity should be progressive to avoid a crisis.

On the issue of presidential elections dispute, the AG said that the Constitution was imperfectly drafted by not considering any dispute arising from the first round of elections.

He argued that the drafters only considered a controversy relating to the run-off outcome and wondered what would happen if one of the losers in the first round decides to file a petition in court.

However, the Commission for the Implementation of the Constitution sharply differed with the AG, accusing him of being insincere and concealing material facts.

“CIC has given the AG all deliberations and advice on how to achieve the gender ratio. What he is seeking is not contextual interpretation since the gender equation is immediate and not progressive as he proposes,” said lawyer Jotham Arwa for CIC.

Mr Arwa argued that there was no ambiguity in the Constitution concerning presidential elections, saying that any electoral process can only be challenged at the conclusion of the process, which will be the presidential run-off.

Lawyer Mohammed Nyaoga for the National Gender and Equality Commission argued that what is required is immediate legislation to ensure women and marginalised groups are not discriminated at polls.

Mrs Judy Thongori representing the Centre for Rights Education and Awareness termed the AG’s application as an abuse of the court process. “The AG is not being genuine in proposing that the two thirds can be achieved gradually.”

IEBC on the other hand took a middle ground and declared that it will abide by the decision of the court. Ruling is on December 11.