• The gender principle provides that not more than two-thirds of party nominees should be of the same gender.
• Duale argues that, through the nomination process, Kenyans democratically nominated candidates of their choice for elections, their gender notwithstanding.
Garissa Town MP Aden Duale has faulted the IEBC over its plans to reject party nomination lists that do not meet the two-thirds gender rule.
The principle provides that not more than two-thirds of political party nominees should be of the same gender.
A total of 43 parties have been flagged by the Independent Election and Boundaries Commission for failing to meet the gender test in their just concluded party primaries.
Among them are the two biggest political parties; Deputy President William Ruto’s United Democratic Alliance (UDA) and Azimio presidential aspirant Raila Odinga’s ODM.
Their lists of nominees for the National Assembly and Senate seats do not meet the two-third gender principle as required by the Constitution.
In its ruling in 2017, the High Court issued several declarations including that the IEBC is obligated to reject any nomination list of a political party if it does not comply with the two-thirds gender rule.
IEBC chairman Wafula Chebukati on Thursday gave the affected parties until Monday midnight to submit fresh lists that meet the gender requirement, failure to which they risk being locked out of the August 9 polls.
Duale has, however, faulted the electoral agency for threatening to reject the nomination lists saying this would amount to blatant violation of the political rights of the nominees, the free expression of the will of voters and sovereign power of the people as enshrined in Article 1(2) of the Constitution.
Duale argues that, through the nomination process, Kenyans democratically picked candidates of their choice for elections, their gender notwithstanding.
“The administrative action of IEBC shall hence negate the sovereign power of Kenyans to democratically elect representatives of their choice,” the law maker said in a statement.
Further, he said rejecting the nomination list on the basis of gender would be in violation of Article 38 of the Constitution which guarantees the free expression of the will of voters.
“The nomination lists by political parties are as a result of Kenyans making political choices to nominate specific candidates. A rejection of the nomination lists is an express violation of the rights of Kenyans to make political choices,” Duale said.
He said the nominated candidates were also picked through a democratic process and rejecting their names would amount to violating their right to vie for public office.
In further challenging the intended action of the IEBC to reject the party nomination lists, Duale cited several scenarios.
That assuming no woman ran for the position of an elected MP in certain constituencies, how will the two thirds gender rule be achieved?
Secondly, assuming in certain constituencies both gender competed for the position of MP and a male candidate won, will the parties now be required to reject the competitively nominated candidate and substitute with the female candidate who never won?
In view of the above, Duale warned that the implementation of the IEBC action would be a nullity which may be challenged in court.
“Was there need to conduct nominations where Kenyans expressed their free will and made political choices on which candidates to nominate only for the candidates to be rejected?” he posed.
Given the above legal challenges, Duale advised political parties to consider filing judicial review proceedings seeking prohibitory orders to stop the IEBC from rejecting the nomination lists.
“The political parties may also need to first seek conservatory orders to suspend the implementation of the action by IEBC pending the determination of the Judicial Review Application,” Duale said.
“The political parties may also consider to engage the IEBC on the ensuing issues raised herein with a view of finding a way forward,” he added.