Gender Rule Verdict

In the matter of the Principle of Gender Representation in the National Assembly and the Senate and in the Matter of Presidential Election Petitions after the first round of Presidential elections.

Advisory Opinion No. 2 of 2012

Supreme Court of Kenya

W.M Mutunga CJ; P.K Tunoi, J.B Ojwang, S.C.Wanjala and N.S Ndungu (SCJJ)

December 11, 2012.

The Attorney General on behalf of the government sought an Advisory Opinion from the Supreme Court through a reference dated 8th October 2012.

Issue

1. Whether Article 81 (b) applies in respect of the very next general elections to be held on March 4^th, 2013, or on the contrary, apply progressively over an extended period of time.
2. 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.

Article 81b provides

“Not more than two-thirds of the members of elective public bodies shall be of the same gender.”

Article 140 provides

“(1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the Presidential election.”

Held

1. The Supreme Court’s opinion will be given only in exceptional circumstances, when the various organs established under the Constitution are for cause, unable to exercise their authority to resolve major governance issue; when the issues involved are weighty and of constitutional significance; and when the public interest in the matter is manifest.
2. Only by due deference to the assigned jurisdiction of the different Courts, will the Supreme Court rightly hold to its mandate prescribed in section 3(c) of the Supreme Court Act, 2011 (Act No. 7 of 2011), of developing rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political

   growth.

3. The basic requirement for an application for an opinion is that it should, as contemplated by Article 163(6) of the Constitution, be seeking to unravel a legal uncertainty in such a manner as to promote the rule of law and the public interest.
4. The Attorney-General’s request for an Advisory Opinion raises issues of great public importance. The forthcoming general elections are not only the most important since independence, but are complex and novel in many ways. The elections come in the context of the first progressive, public-welfare-oriented, historic Constitution which embodies the people’s hopes and aspirations. Not only are these elections one of the vital processes instituted under the Constitution, but they constitute the first act of establishing a whole set of permanent governance organs. Clearly, any ambivalence or uncertainty in the path of such crucial elections must, as a matter of public interest, be resolved in time: and the task of resolution rests, in the circumstances prevailing, with the Supreme Court, by its Advisory-Opinion jurisdiction.
5. The expression progressive realisation is neither a stand-alone nor a technical phrase. It simply refers to the gradual or phased-out attainment of a goal, a human rights goal which by its very nature, cannot be achieved on its own, unless first, a certain set of supportive measures are taken by the State. The exact shape of such measures will vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures may involve legislative, policy or programme initiatives including affirmative action.
6. Whether a right is to be realized “progressively” or “immediately” is not a self-evident question: it depends on factors such as the language used in the normative safeguard, or in the expression of principle; it depends on the mechanisms provided for attainment of gender-equity; the nature of the right in question; the mode of constitution of the public body in question e.g. appointive of elective; if elective, the mode and control process for the election); the identity and character of the players who introduce the candidates for appointment or election and on the manner of presenting candidature for election or nomination.
7. The expression “progressive realization” as apprehended in the context of the human rights jurisprudence, would signify that there is no mandatory obligation resting upon the State to take particular measures, at a particular time, for the realization of the gender-equity principle, save where a time-frame is prescribed.
8. It is not the classification of a right as economic, social, cultural, civil or political that should suit a particular gender-equity claim to the progressive mode of realization; it is the inherent nature of the right, that should determine its mode of realization.
9. Article 81(b) of the Constitution standing as a general principle cannot replace the specific provisions of Articles 97 and 98, not having ripened into a specific, enforceable right as far as the composition of the National Assembly and senate are concerned. This is the burden of the court’s opinion on the matter, that it cannot be enforced immediately.
10. If the legislative measures contemplated to ensure crystallization of the two-thirds gender principle into an enforceable right are not taken before the elections of 4^th March 2013, then Article 81(b) will not be applicable to the said elections. The effect is that Article 81(b) of the Constitution is amenable only to progressive realization – even though it is immediately applicable in the case of County Assemblies under Article 177.
11. The Provision in Article 27(6) for the State to take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups presupposes open-ended schemes of decision making and programming, which can only be effected over a span of time. By accommodating such prolonged time-spans of action by the legislative and Executive branches, the Judiciary by no means negates the principle of separation of powers.
12. Bearing in mind the terms of Article 100 on promotion of representation of marginalised groups and of the Fifth Schedule prescribing time-frames for the enactment of required legislation, legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015.
13. There are potential disputes from Presidential elections other than those expressly mentioned in Article 140 of the Constitution. A Presidential election, much like other elected-assembly elections, is not lodged in a single event; it is, in effect, a process set in a plurality of stages.
14. Article 163(3) suggests, that the Supreme Court was intended to adjudicate upon all disputes as would arise from the Presidential election. There is no reason to presume that the framers of the Constitution intended that the Supreme Court should exercise original jurisdiction only in respect of a specific element, namely, disputes arising after the election while excluding those disputes which might arise during the conduct of the election.
15. The validity of the Presidential election is not for determination only after the administrative pronouncement of the final result; at any stage in the critical steps of the electoral process, the Supreme Court should entertain a dispute as to validity.
16. Presidential-election disputes, in their whole range, should be impartially and expeditiously resolved by the Supreme Court as the ultimate judicial body, within practical time-lines to be read into Article 138(5); and in the event of a second round of election, the words “within thirty days after the previous election” should be read to mean thirty days from the date on which disputes in respect of the first round will have been resolved.

As per

W. Mutunga C J (Dissenting)

1. The issue of two-third gender principle in the elections to Parliament and the Senate is a matter concerning county government. So is the election of the President. Thus the Supreme Court has jurisdiction to hear the Reference by the Attorney General and deliver an Advisory Opinion.
2. The obligation of the Supreme Court is to cultivate progressive indigenous jurisprudence- grown out of Kenya’s own needs, without unthinking deference to that of our other jurisdictions and courts, however distinguished.
3. There is no violation of the principle of separation of powers in the Supreme Court's rendering of this Advisory Opinion under Article 163 (6). The Court's role is clearly defined in the Constitution. There is no evidence that the Court in exercising its constitutional mandate in this Reference has in any way entered the constitutionally preserved mandates of the Executive and Parliament.
4. The Supreme Court has power to declare Parliament unconstitutionally constituted. It is the Supreme Court's duty to defend the Constitution, and ensure that all bodies within it are constituted constitutionally and employ all powers donated by the People to it constitutionally.
5. The Constitution's view to equality, as one of the values provided under the Constitution is not the traditional view of providing equality before the law. Equality is substantive, and involves undertaking certain measures, including affirmative action, to reverse negative positions that have been taken by society. Where such negative exclusions pertain to political and civil rights, the measures undertaken are immediate and not progressive.
6. From article 27 of the Constitution, it is clear that disenfranchisement of the Kenyan women in the political arena is a form of discrimination. Kenyans, particularly women, when they voted for a new constitution, had in mind the continuous and consistent struggle for their equity and equality in all spheres of life.
7. Article 177 (giving a formula for gender equality in county government) is a clear proof of the submission for immediate realization of the two-thirds gender principle. There is no reason that a Constitution that decrees non-discrimination would discriminate against women running for Parliament and the Senate. There is no constitutional basis for discrimination among women themselves as the consequence of the progressive realization of the two-thirds gender principle would entail. A Constitution does not subvert itself.

   Deciding that women vying for county representation have rights under the Constitution while their counterparts vying for Parliament and the Senate are discriminated against would result in that unconstitutional position.

8. The State has been implementing the principle as a matter of clear policy. Stakeholder convening and discussions on the two-thirds gender principle has always been about implementation and not interpretation. Parliament cannot then, by its silence, deprive women the right to equal representation. There is no reason to doubt the patriotism of the current Parliament that is fully aware of the constitutional consequences of refusing to legislate. In the event that Parliament fails to legislate, any of the elected houses that violate this principle will be unconstitutional and the election of that house shall be null and void.
9. The immediate implementation of the two-thirds gender principle is reinforced by values of patriotism, equity, social justice, human rights, inclusiveness, equality and protection of the marginalised. Such values would be subverted by an interpretation of the provisions that accepts progressive realisation of this principle.