Understanding the Supreme Court's Advisory Opinion on the gender principle; A reader's summary

In the Matter of the Advisory Opinion on the Principle of Gender Representation in the National Assembly and the Senate and in the Matter of the Attorney General (on behalf of the Government) as the Applicant

READER'S SUMMARY

The following explanatory note is provided to assist persons looking to understand this case in a summarised way. It is not binding on the Supreme Court or any member of the Court. Any mistakes made in putting up this summary are the blogger's own and in no way the Court's.

Background

The Attorney General on behalf of the government of Kenya sought an Advisory Opinion from the Supreme Court of Kenya through a reference dated 8th October 2012 on two matters. First, whether Article 81(b) as read with Article 27 (4), 27(6), 27(8), Article 96, Article 97, Article 98, Article 177 (1)(b), Article 116 and Article 125 of the Constitution requires progressive realisation of the enforcement of the one third gender rule or if it requires the same to be implemented during the general elections scheduled for 4th March 2013. Secondly, whether an unsuccessful candidate in the first round of presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution

The Attorney General represented by the Deputy Solicitor General, Ms. Muthoni Kimani and the amici curiae (friends of the court) represented by, Mr Mwenesi (CMD), Mr Arwa (CIC) , Ms Thongori/Mr Ongoya (CREAW and allied organisations), Mr Nderitu/Mr Chigiti (KHRC &FIDA-Kenya), Mr. Korir (Katiba Institute), Mr. Nyamodi (IEBC), Mr Nyaoga (NGEC), Mr. Amollo (CAJ), Mr. Kibe Mungai (ICCRG) and Mr. Charles Kanjama were all present in court.

The Ruling by the Majority

In a detailed ruling of the majority read by the Hon Justice (Prof) J.B Ojwang, the court started off by noting that the Attorney General approached the court with a matter touching on electoral issues which concerned county governments. In asserting the need for the court to render advisory opinions, the court stated that the role of the Supreme Court as a general advisor of the government is an important mandate particularly when sought by the Attorney General. That the Court operating in the regime of a concise, public welfare oriented Constitution was open to rendering advice to settle legal uncertainties in the process of progressing the rule of law. The court stressed that in consonance with its precise Advisory Opinion in the Matter of IEBC, the advice being sought concerned County Governments. In the fabric of the progressive Constitution, the system of devolution posses issues of structural management and governance. Hence the essence of the Constitution donating discretionary powers to the Supreme Court to render advisory opinions in matters concerning County Governments.

In setting the ground for its ruling, the Court reiterated the parties submissions. Notably, the parties were divided into three classes;those who were urging that the gender principle is to be implemented immediately, those of the opinion that the Principle should be progressively realised (the implication being, that the principle under Article 81(b) should not be implemented in the forthcoming general elections). Those of the opinion that the principle could be achieved immediately or in two election cycles. As a matter of mention, there were also those who were neutral  such as the IEBC and had stated that they would conscientiously follow the direction of the Supreme Court.

The Court also noted the concern of the Attorney General and the parties with regard to the application of the provisions of Article 81 (b) of the Constitution. The Court observed that it was a concern that should the electorate not elect women to Parliament, this Article would be pierced and the only way to balance the representation in Parliament to meet the provisions of Article 81(b) was by way of nominations. The Court however noted that this be as it may, nominations would increase the composition of the National Assembly to a number beyond that provided by the Constitution. A move that would be untenable under the Constitution of Kenya 2010.

The Court stated that it was conscious of the social imperfections that led to the adoption of Article 81 (b) of the Constitution. That the inclusion of this Article in the Constitution was driven by unequal participation of women in public and political affairs. This dismal participation of women was referred to by Lawyer Judy Thongori, as the “socialisation of Patriarchy”. In reaching its decision, the court referred to various Human Rights Instruments to which Kenya is a party such as the UNDHR, ICCPR, ICESCR and CEDAW. In carefully examining the questions posed by the legal adviser to the Government, the Court noted that the Constitution of Kenya draws inspiration from these Human Rights Instruments. Particularly in the use of the term, progressive realisation which is used in various Articles in the Constitution.

Against this backdrop, the court referred to the Constitutional quotas of gender representation. In analysing the composition of the Judicial Service Commission (JSC) as established under Article 171 of the Constitution, the court highlighted the immediacy of the realisation of the gender principle as far as the membership of the JSC is concerned. The court noted that the Constitution clearly secures the representation of three women in the JSC. The minimum of three must be attained immediately. However, the attainment of four in light of Article 27 (8) of the Constitution, would be progressive and dependent on the State's further action. In giving this example the Court noted that the three secured positions fall short of the two-thirds to one-third principle since the full membership of the JSC rests at eleven. However the presence of four women out of 11 fulfills this principle.  

The court was of the view that the realisation of the rights under Article 27 (6) and (8) could only be fully realised using legislative as well as other measures but over a spaced period of time and by means of positive and good-faith exercise of governance discretion. That the realization of these rights cannot merely be attained by legislation but by policy and other measures. The court ruled that Article 81(b) bears a broad principle and not a right. It is a statement of aspiration: that wherever and whenever elections  are held, the Kenyan people expect to see mixed gender.  The Chapter in which Article 81 appears bears the title “representation of the people”. Moreover, it concerns elective public bodies. In the Court's opinion, public elective bodies is not confined to just the National Assembly, Senate or County Government but to any public body in Kenya that holds some form of elections in its representation. Therefore, in its conclusion, Article 81 (b) cannot be attained immediately. The same cannot be applicable to the March 2013 General elections.

When shall the principle be applicable?

In light of Article 20 of the Constitution, the Court saw it fit to put the principle on the path of maturation. Bearing in mind the provisions of Article 100 of the Constitution, legislative measures giving effect to this Article should be taken by the 27th August 2015 by dint of the Fifth Schedule to the Constitution.

The Court in settling a concern raised by the parties in their arguments regarding the veering of the court into matters set apart for the Executive asserted that it was in no way interfering with the powers of the Executive.

The dissenting opinion

The Chief Justice, Dr. Willy Mutunga, in a dissenting opinion stated that the Constitution was wholesome in its provisions and no prescriptions other than those provided in the Constitution were necessary. The Chief Justice noted that Kenya now prides itself with the most progressive Constitution in the world with a robust Bill of Rights . The Chief Justice asserted that the Supreme Court must remain the exemplary custodian of the Constitution bearing the embodiment of the aspirations of the Kenyan people. He noted that the operation of the Supreme Court was to cultivate indigenous jurisprudence in progressing the rights of the Kenyan people. The Chief Justice was of the opinion that the Supreme Court has the mandate to develop the Constitution and the law to suit the needs of the Kenyan People. He added that in interpreting the Constitution, the Court needed to take a purposive approach without merely relying on the jurisprudence developed by other jurisdictions. Noting however to learn from the experiences in other jurisdictions such as Canada and South Africa. This is what is meant by indigenous jurisprudence.

The Chief Justice cautioned the constitution will present the courts with inconsistencies, grey areas, contradictions, vagueness, bad grammar and syntax, legal jargon, all hallmarks of a negotiated document that took decades to complete. That it reflects contested terrains, vested interested that are sought to be harmonized, and a status quo to be mitigated.He however stated that the Constitution provides formulas of unraveling any legal contradictions and conundrum.

The Chief Justice asserted that the disenfranchisement of Kenyan Women in the political arena is a form of discrimination that ashamedly started with the birth of Kenya as a Nation State. He pointed out the fact that there was not a single female MP in the first Legislature in the year 1963. He cited CEDAW as a call to governments to put a stop to this discrimination. He cited that the percentages of female representation in the Kenyan parliament had been dismally improving with 4.1% in 1997, 8.1% in 2002 and 9.8% in 2007. He noted that this must have been a motivation for women in voting for the new Constitution through a referendum in the year 2010. 

He noted that Kenya as an anchor state in Eastern and Horn of Africa would be 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. The Chief Justice noted that arguing that this two thirds principle is progressive flies in the face of the will of Kenyans in voting for the Constitution of Kenya 2010 and that it was undeniable that Kenyan Women have continuously and consistently struggled for their equity and equality in all spheres of life. Indeed the Chief Justice agreed with Katiba Institute in stating that this principle was a minimum and the aim would be to get to a 50:50 par between men and women. That equality in Article 81 (b) and Article 27 connotes societal equality and not the traditional equality before the law.

In conclusion, he remarked that Parliament by its silence cannot deprive the women of this country their Constitutional right to equality in all spheres. The Chief Justice observed that Parliament ought to legislate here and now to secure the rights of Kenyan women and therefore tenable in the general elections of March 2013.

Settling disputes relating to the first round of the presidential elections

The court unanimously ruled that, there is a lacuna in the Constitution regarding the settlement of disputes relating to the elections of the President after the first round of elections. Before legislative provisions to cover this lacuna are enacted, the Court held that it is its duty to provide a solution. The election of the President is a process. Article 140(1) of the Constitution provides for settlement of disputes only after there is a President-elect and not within the process leading to the attainment of a President-elect.

The contest after the first round of elections is limited to only two people according to Article 138 of the Constitution. The Court noted that the framers of the Constitution could not have intended that the Supreme Court only handles matters arising after the administrative pronouncement of the final results of an election yielding a President-elect. The Court posed the question whether it would be tenable to hold the second round of elections within 30 days after the first round of elections? The court in applying a purposive approach held that 30 days, in this instance, should be taken to mean 30 days after all the disputes regarding the first round of presidential elections have been settled. The court therefore held that it has jurisdiction to hear disputes relating to the first round of Presidential elections under the Constitution.

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Summary by Rose Wachuka Macharia-Edited by Prisca Muriuki-Ndung'u and Loise W. Ndung'u.