Supreme Court to hear petition on gender rule

The contentious two-thirds gender representation in the Senate and Parliament will now be resolved by the Supreme Court.

A five-judge bench, led by Chief Justice Willy Mutunga, ruled that they had jurisdiction to offer advisory opinion on an application by Attorney-General Githu Muigai on the two-thirds gender limit and disputes relating to presidential elections.

It was the first time the Supreme Court admitted a matter for full hearing and determination.

It had dismissed other petitions at the preliminary stage on the basis that they did not meet the requirement for admission before the court.

Dr Mutunga, justices Jackton Ojwang’, Smokin Wanjala, Philip Tunoi and Njoki Ndung’u ruled that issues raised by the AG had a direct bearing on the county governments and squarely fell under their mandate as provided by Article 163 (6) of the Constitution.

“There is a close connectivity between the national and county governments and if at any time it appears there is a question of law that is likely to arise, then the matter can be referred to the Supreme Court for determination,” said Dr Mutunga.

At the same time, the judges rejected applications by the Consumer Federation of Kenya, the Coalition on Violence Against Women and activist Okiya Omtatah Okoiti to be enjoined in the case, ruling that they lacked requisite knowledge and experience on gender representation.

They, however, allowed the Centre for Multi-party Democracy, the Centre for Rights Education and Awareness (Creaw), Federation of Women Lawyers, Kenya Human Rights Commission and lawyer Charles Kanjama to be joined in the petition as “friends of the court”.

Other institutions allowed to join the petition as interested parties were the Commission for the Implementation of the Constitution, the Gender and Equality Commission, the Independent Electoral and Boundaries Commission, the Commission for the Administration of Justice and Katiba Institute.

Some parties had raised objections to the jurisdiction of the court offering advisory opinion on the matter, arguing that matters of constitutional interpretation should be referred to the High Court.

Political process

Lawyer Judy Thongori, for Creaw, submitted that the request by the AG should not be admitted since it lacked a subject matter and did not concern county governments.

“The gender question is very clear since the Constitution provides how it will be achieved in the County Assemblies. The application concerns Senate and Parliament and is therefore outside the scope of the Supreme Court,” said Ms Thongori.

Mr Kanjama said the ambiguity on achieving gender balance could only be solved through a political process.

The judges ruled that elements touching on the Senate also involved county assemblies and that the matter was of great public interest and must be resolved urgently.

The AG is seeking the interpretation of more than 10 clauses in the Constitution relating to gender representation, presidential elections disputes, the national values and the right to be elected, among others.

On presidential elections disputes, Prof Muigai says there is no express right to bring an election petition over a run-off and since there are potential disputes arising from the announcement of the first round results, there is a need to come up with clearer rules before the country goes for elections.

On the gender issue, he argues that the Constitution is silent on how to achieve the provision that not more than two-thirds of public office holders shall be of the same gender.

Hearing will be on November 20.