On the Supreme Court’s Majority Opinion on the One Third Gender Rule

Posted by on 14th December 2012

Categories:   Uncategorized

How to implement the one third gender rule has been a problem that the government has grappled with for a while now. A few months ago the Attorney General, Githu Muigai, petitioned the Supreme Court to give an advisory opinion on the implementation of the one third gender principle provided for in the constitution.

The principle requires that any elected/appointed body be comprised of more than two thirds of
any gender. The one third gender principle is first seen in Article 81 (b) of the constitution and is
repeated in Articles 96, 97, 98, 177 (1) (b), Article 116, and Article 125 of the Constitution.

However in spite of continuous debate on the one-third gender rule there has been little consensus on how the constitutional provisions are to be implemented. The implication of which would be the likelihood that the gender quotas would not have been realized during the general elections of 4 March 2013 which would have led to a constitutional crisis, with the possibility of the National Assembly being declared unconstitutional.

The seeking of an advisory opinion from the Supreme Court sought to avert such a constitutional
crisis. The main issue being: whether the above provisions of the Constitution require progressive
enforcement of the one-third gender rule or whether the constitution requires that the one third
gender principle be implemented immediately i.e. during the general elections scheduled for 4th
March, 2013.

In its majority opinion the Court acknowledged the, “social imperfection which led to the
adoption of Articles 27(8) and 81(b) of the Constitution: that in elective or other public bodies,
the participation of women has, for decades, been held at bare nominal levels, on account of
discriminatory practices, or gender-indifferent laws, policies and regulations. This presents itself as a manifestation of historically unequal power relations between men and women in Kenyan society and its resultant diminution of women’s participation in public affairs has had a major negative impact on the social terrain as a whole.”

Despite this majority of the Court was also of the opinion that the one third gender principle
as provided for by the constitution could not be enforced immediately and was to be applied
progressively: progressively being by 27 August 2015. The court stated that, “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.

While the ruling of court on the one third gender principle may be disappointing for some. I for one appreciate the clarity that the Judiciary, and in this case the Supreme Court, has brought to the to the implementation of the one third gender rule. Furthermore had the court ruled otherwise we may have seen the speedy passage of flawed legislation that would have had a negative effect on gender parity in leadership in long-run. Now we know that we have just less than three years to ensure that parliament makes legislation to ensure the realisation of the one third gender principle, let’s get it right.

What are your thoughts on the Supreme Court’s advisory opinion?

Read the full majority decision and dissenting opinion here http://www.judiciary.go.ke/portal/one-third-gender-rule.html