Advisory Opinion Application No.2 of 2012

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In the Matter of the Advisory Opinion on the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion Application No.2 of 2012

ISSUES

They sought advisory opinion on the following:

  1. Whether article 81(b) as read with article 27(4),27(6),27(8),96,97,98,177(1)(b),116 and 125 of the constitution of Kenya requires a progressive realization or an immediate to enforce the two thirds gender rule.
  2. Whether an unsuccessful candidate of the first round of a presidential election under Article 136 of the Kenyan constitution 2010 or if any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election scheduled for 4th march 2013

ARTICLES

Article 81(b)-not more than two thirds of members of elective public bodies shall be of the same gender.

Article 81(d)- universal suffrage is based on the aspiration for fair representation and           equality to vote

Article 81(e)- Provides for free and fair election

Article 27(3)- Women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social sphere

Article 27(6)– To give full effect to the realization of rights guaranteed under this article, the state shall take legislative and other measures including affirmative action programs and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination

Prayers

  1. The Political Party’s Act be amended
  2. The nominees selected by various parties be in line with the gender rule

Holding

Since the Supreme Court is the custodian of the integrity of the constitution, it interpreted the constitution holistically i.e. the realization of the gender rule should be progressive and cannot be enforced in the forthcoming general election i.e. 4th match 2013

The question of when the progressive realization should apply arose. The court decided that it should apply on 27 August 2015.