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Economy

Ruling on gender averts constitutional crisis

Supreme Court president Willy Mutunga (right) with Justice Jackton Ojwang’  when they made a ruling on the gender equity rule at the court in Nairobi on December 11, 2012. Photo/Phoebe Okall
Supreme Court president Willy Mutunga (right) with Justice Jackton Ojwang’ when they made a ruling on the gender equity rule at the court in Nairobi on December 11, 2012. Photo/Phoebe Okall  Nation Media Group

The Supreme Court Tuesday averted a constitutional crisis by ruling against the immediate implementation of a requirement that a third of members elected to Parliament be women.

By a majority opinion that left Supreme Court president Willy Mutunga as the only dissenter, the judges ruled that the one-third gender rule was intended to be enforced progressively.

The ruling means that the National Assembly and the Senate that will be constituted after the March 4 General Election will not be required to have quotas reserved for women who are under-represented in many public and private decision making organs at the moment.

Supreme Court judge Jacktone Ojwang’ said that the Constitution does not provide for the immediate enforcement of the one-third gender rule.

“We are of the opinion that legislative measures for giving effects to the one-third to two-thirds gender principle, under Article 81b of the Constitution and in relation to the National Assembly and senate, should be taken by August 27, 2015,” said Mr Justice Ojwang’ on behalf of his colleagues Smokin Wanjala, Philip Tunoi and Njoki Ndung’u.

Dr Mutunga, however, said it would be unconstitutional for the current Parliament not to pass legislation on the one-third rule despite its tight schedule.

“It is my opinion that the two third gender rule be implemented on March 4, 2013,” said Dr Mutunga, adding that he saw no reason why such as constitutional decree should be left unaddressed. He said the next General Election would be null and void if the rule was not met.

The Supreme Court was giving an advisory opinion following an application by Attorney-General Githu Muigai seeking guidance over the one-third gender rule and resolution of disputes arising from a presidential election.

The majority opinion ruled that the Constitution as a general principle cannot replace specific provisions as far as the composition of the National Assembly and Senate are concerned.

“And this is the burden of our opinion on this matter- that it cannot be enforced immediately,” said Mr Justice Ojwang’ on behalf of the majority judges.

The majority ruling said that the one-third rule could only be realised under the county assemblies and not the legislative assembly and the Senate. The judges gave Parliament up to August 27, 2015, five years since the Constitution was ratified in 2010, to come up with legislation on how the one-third gender rule will be met in the 2017 General Election.

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