IN THE MATTER OF AN APPLICATION FOR ADVISORY OPINION UNDER ARTICLE 163 (6) OF THE CONSTITUTION OF KENYA

IN THE MATTER OF ARTICLE 81, ARTICLE 27 (4), ARTICLE 27 (6), ARTICLE 27(8), ARTICLE 96, ARTICLE 97, ARTICLE 98,

ARTICLE 177(1)(b), ARTICLE 116, ARTICLE 125 AND ARTICLE 140 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF THE PRINCIPLE OF GENDER REPRESENTATION IN THE NATIONAL ASSEMBLY AND THE SENATE

IN THE MATTER OF THE ATTORNEY-GENERAL (ON BEHALF OF THE GOVERNMENT) AS THE APPLICANT

ADVISORY OPINION

A. INTRODUCTION

[1] This Advisory Opinion relates to two discrete elements in respect of which the Attorney-General thus moved the Court:

“The Advisory Opinion of the Court is sought on the following issues:

A. Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1)(b), Article 116 and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one-third gender rule or requires the same to be implemented during the general elections scheduled for 4^th March, 2013?

B. 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?”

[2] The learned Attorney-General annexed his depositions indicating the factual circumstances necessitating motion in the Supreme Court, on the matters in hand. He notes the principle in Article 81(b) of the Constitution: “not more than two thirds of the members of elective public bodies shall be of the same gender”; that in Article 81(d) which provides for “universal suffrage based on the aspiration for fair representation and equality of vote”; and that in Article 81(e) which provides for “free and fair elections.” The Attorney-General notes the Bill of Rights safeguard for “equality and freedom from discrimination,” in Article 27, in particular sub-Article 3 which declares that “women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.” He states that the Constitution reposes positive obligations on the State to move by appropriate instruments to lay the necessary equality-rendering structures; he cites Article 27(6) which thus provides:

“To give full effect to the realization of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.”

The foregoing provision gives a discretion to be exercised by the State in good faith and in a progressive manner; it thus stipulates in sub-Article (7):

“Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.”

In that same spirit, Article 27(8) imposes upon the State the obligation to redress gender disadvantage:

“In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds for the members of elective or appointive bodies shall be of the same gender.”

[3] The Attorney-General in his affidavit, signals both guiding principles, and quantized rights and claims, running in parallel, in the safeguards of the Constitution. For instance, Article 38(1) states the broadly-ascertainable entitlement: “Every citizen is free to make political choices” – which includes the right “to form or participate in forming a political party”, “to participate in the activities of, or recruit members of, a political party”, “to campaign for a political party or cause.” That runs alongside the strictly-ascertainable right provided for in Article 38(3): “Every adult citizen has a right....to be registered as a voter; ...... to vote by secret ballot....”

[4] Of the place of broad principle in the Kenya Constitution, the Attorney-General recalls the terms of Article 10, on “national values and principles of governance”; he remarks the hortatory as well as obligatory tone attached to new situations facing government:

“The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them –

(a) applies or interprets this Constitution;

(b) enacts, applies or interprets any law; or

(c) makes or interprets public policy decisions [Article 10(1)].”

[5] The Attorney-General sets the provisions regarding membership of the Legislature against the principles of governance declared in the Constitution. He notes that Article 97(1) prescribes as membership of the National Assembly:

(a) 290 members elected in single-member constituencies;

(b) 47 elected women representatives from each county;

(c) 12 special interest-group members nominated by the political parties;

(d) the Speaker.

And the Attorney-General sets out the prescribed membership of the Senate [Article 98(1)]:

(a) 47 elected members representing each county;

(b) 16 women nominated by the political parties;

(c) 2 members – a man and a woman, representing the youth;

(d) 2 members – a man and a woman, representing persons with disabilities;

(e) the Speaker.

[6] The gravamen of the Attorney-General’s application now emerges clearly. He perceives an inconsistency – or potential inconsistency – between the equality principles contained in Article 27 of the Constitution, and the specific provisions on membership of the National Assembly and the Senate, as provided in Articles 97 and 98. This perception is the factual matter that, in the Attorney-General’s deposition, gives cause to move the Supreme Court to render an Advisory Opinion.

[7] The Attorney-General apprehends that “there is no guarantee that the number of nominated persons from the lists of nominees provided by the political parties will ensure that at least one-third of the members in each House will be of one gender.”

[8] There is a foundation to the Attorney-General’s qualms. The uncertainty left in Articles 97 and 98 of the Constitution are not repeated in the case of County Assemblies [Article 177], in respect of which the two-thirds-and-one-third rule is clearly provided for.

[9] The Attorney-General’s concern, and his further reason for seeking this Court’s Advisory Opinion, is that recent superior Court decisions have had a bearing on the principle of gender equality: and therefore, a state of uncertainty in the law prevails which the ultimate Court should lay to rest.

[10] The Attorney-General deposes that it was not, in the nature of the matter, possible for him to resolve the likely contentions on questions of law, and it thus became necessary to seek an Advisory Opinion, in time before the institution of the next Legislature through the electoral process due to take place on 4 March 2013.

[11] The second question referred to this Court by the Attorney-General is on a potential sphere of dispute, in the Presidential election due to take place on 4 March 2013. The relevant depositions run as follows:

“That Article 163(3)(a) of the Constitution of Kenya provides that the Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the office of the President arising under

Article 140.

“That Article 140(1) provides that a person may file a petition in the Supreme Court to challenge the election of President-elect within seven days after the date of declaration of the results of the Presidential election.

“That, however, there is a question as to whether an unsuccessful candidate in the first round of the Presidential election under Article 136 of the Constitution is or is not entitled to petition the Supreme Court to challenge the outcome [of the] said election under Article 140.

“That there exists a lacuna in the Constitution as to what process should be followed to resolve any possible controversy that might arise: for example, challenging the results in the first round of a Presidential election should there not be a clear simple-majority winner. There is no clear indication [of the mode of] resolution of disputes from the first round of Presidential election. There is no express right to bring an election petition over a run-off. What happens where the runner-up position is contested, for instance?”

B. PARTIES AND AMICI CURIAE

[12] The subject of this Advisory Opinion is one of general public interest. Thus, on the occasion of mention, on 8 November 2012 several bodies sought and were admitted to interested-party status: the Commission on the Administration of Justice (CAJ); the Independent Electoral and Boundaries Commission (IEBC); the Commission on the Implementation of the Constitution (CIC); and the National Gender and Equality Commission (NGEC). On the same occasion the following were admitted as amici curiae: the Centre for Rights Education and Awareness (CREAW); the Katiba Institute; the Centre for Multi-party Democracy (CMD); FIDA-Kenya; the Kenya Human Rights Commission (KHRC); the International Centre for Rights and Governance (ICRG); and Mr. Charles Kanjama, Advocate.

C. CONTEST TO JURISDICTION

[13] Several amici curiae objected to the Attorney-General’s application on grounds of jurisdiction. Learned counsel Mr. Kanjama, in agreement with counsel for CREAW (Ms. Thongori and Mr. Ongoya) and CMD (Mr. Mwenesi and Ms. Kimani), urged that the gender question in the electoral process concerned national government exclusively and was unrelated to county government – and hence, by the authority of this Court’s earlier decision, In the Matter of the Interim Independent Electoral Commission, Sup. Ct. Civil Application No. 2 of 2011, is not proper matter for an Advisory Opinion.

[14] It was the position of both CREAW and CMD that moving this Court for an Advisory Opinion was an abuse of process: for the Attorney-General had not stated whether, as the Government’s principal legal advisor, his opinion on the question had been sought and if so, what opinion he had given, and what redressive action had been taken on the basis of his opinion. It was CREAW’s position, further, that the Attorney-General’s motion was occasioned by no dilemma in his line of duty, as he still has on Parliament’s agenda two separate Bills seeking implementation of the gender rule.

[15] The Attorney-General’s response was that the Supreme Court, under Article 163(6), has a discretionary jurisdiction to give an Advisory Opinion at the request of the National Government, any State organ, or County Government with respect to any matter concerning county government: a jurisdiction already defined in In the Matter of the Interim Independent Electoral Commission, Sup. Ct. Constitutional Application No. 2 of 2011.

[16] The Attorney-General’s position is supported by learned counsel, Mr. Nowrojee who represented IEBC; he urged that matters of national and of devolved government are closely intertwined. Mr. Nowrojee gave the example of Articles 110 and 111 of the Constitution which lay down the procedures for the passing of Bills “concerning county governments”; such Bills have to be deliberated upon and enacted by the National Assembly and the Senate.

[17] In the earlier Advisory-Opinion matter, this Court had elected to proceed with caution in such cases. Only a truly deserving case will justify the Court’s Advisory Opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to first-instance-Court litigation. 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.”

[18] The Supreme Court must also guard against improper transformation of normal dispute-issues for ordinary litigation, into Advisory-Opinion causes: as the Court must be disinclined to take a position in discord with core principles of the Constitution, in particular, a principle such as the separation of powers, by assuming the role of general advisor to Government.

[19] The Court recognizes, however, that its Advisory Opinion is an important avenue for settling matters of great public importance which may not be suitable for conventional mechanisms of justiciability. Such novel situations have clear evidence under the new Constitution, which has come with far-reaching innovations, such as those reflected in the institutions of county government. The realization of such a devolved governance scheme raises a variety of structural, management and operational challenges unbeknown to traditional dispute settlement. This is the typical situation in which the Supreme Court’s Advisory- Opinion jurisdiction will be most propitious; and where such is the case, an obligation rests on the Court to render an opinion in accordance with the Constitution.

[20] We have no doubt that the issues upon which an opinion has been sought, are indeed matters of county government. The gender composition of both the National Assembly and Senate, if it could touch on the constitutionality of these organs, is an issue bearing impact on county government. The Court had on this question, in In the Matter of the Interim Independent Electoral Commission, Sup. Ct. Constitutional Application No. 2 of 2011, held electoral matters to be matters of county government:

“On the question whether election date is a matter of “county government’, we have taken a broader view of the institutional arrangements under the Constitution as a whole; and it is clear to us that an independence of national and county governments is provided for through a devolution-model that rests upon a unitary, rather than a federal system of government....[We] have taken note too that the Senate (which brings together County interests at the national level) and the National Assembly (a typical organ of national government), deal expressly with matters affecting county government; and that certain crucial governance functions at both the national and county levels...dovetail into each other and operate in unity.”

[21] The Court came, in the earlier instance, to the conclusion that the question as to when the general elections would be held was central to county government – and so, belonged to the jurisdiction of the Court in respect of Advisory Opinions.

[22] By the same token, we hold the opinion that the two questions referred to this Court by the Attorney-General are of such a nature as to bring the reference within the ambit of matters that qualify for this Court’s Advisory Opinion.

[23] Learned counsel Ms. Thongori and Mr. Nderitu, while not disputing the jurisdiction of this Court, have asked that we should nonetheless, decline to render an Advisory Opinion: for the reason that it was not a plain opinion being sought but rather, a precise interpretation of the law, which should be a matter for regular dispute settlement.

[24] It is not our perception, however, that all the Attorney-General seeks is an interpretation of Article 81(b) of the Constitution. In fact, the Attorney-General has moved this Court seeking an opinion as to whether the terms of Article 81(b) apply in respect of the very next general elections, to be held on 4 March 2013, or on the contrary, apply progressively over an extended period of time.

[25] It is clear to us that this Court, while rendering Advisory Opinion, will almost invariably engage in the exercise of constitutional interpretation, and it is not precluded from such an exercise. It does not follow, therefore, that the Court will decline a proper request for an Advisory Opinion, merely because rendering such opinion will entail constitutional interpretation. 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.

[26] The Attorney-General’s request for an Advisory Opinion, in our view, 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.

D. GENDER EQUITY IN THE MEMBERSHIP OF THE LEGISLATURE: MUST REALIZATION BE IMMEDIATE? OR PROGRESSIVE?

[27] It was the Attorney-General’s submission that no consensus has been achieved thus far, in the interpretation of Articles 81(b) as read with Articles 27(6), 27(8), 96, 97, 98, 177(1), 116 and 125 of the Constitution, and that these articles were silent on effective dates. Moreover, the Attorney-General urged, there are divers interpretations of the said provisions – leading to the likelihood that the gender quotas may not be realized during the general elections of 4 March 2013. Such a prospect, the Attorney-General urged, may lead to a constitutional crisis, with the possibility of the National Assembly being declared unconstitutional.

[28] The learned Attorney-General submitted that the full and timeous fulfilment of the gender-equity principle rests on a diverse foundation that does not fall to the charge of one agency. The role of political parties is central; and appropriate legislative arrangements are required under the Political Parties Act, 2011 (Act No. 11 of 2011) and the Elections Act, 2011 (Act No. 24 of 2011). Yet, as of now, the two enactments have provided no mechanisms for the implementation of the gender-equity principle. Although the Attorney-General has endeavoured to address the gender-representation problem, neither of his proposed amendments to the Constitution [by way of the Constitution of Kenya (Amendment) Bill, 2011 and the Constitution of Kenya (Amendment) Bill, 2012] has been tabled and passed by the outgoing Parliament, the tenure of which expires soon, and earlier than the forthcoming elections-date.

[29] The Attorney-General asked the Court to give meaning to a relevant word that creates the gender-equity principle, in Article 81 of the Constitution; it thus provides:

“The electoral system shall comply with the following principles –

(a) ....

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

The Attorney-General urges that, depending on how this Court, in proper context, interprets the word “shall”, an authoritative position would crystallize on whether the two-thirds-one-third gender-equity rule in the national legislative agencies, is for immediate, or phased-out (or progressive) implementation. He submitted that the meaning of the word “shall” is not cast in stone.

[30] The Attorney-General submitted that as a consequence of the uncertainty of language in the Constitution’s gender-equity clauses, there is only one certainty: that, by Article 97(1)(b), the mandatory number of those of the female gender to form part of the National Assembly’s membership is 13.4 percent. Thus, if the electorate in its uninhibited mode, should fail to elect women in numbers satisfying the gender-equity rule, the only way to comply with prescribed equity-fractions would be through nominations. Nominations on those lines would automatically raise the membership figure of the national legislative bodies well beyond the prescriptions of the Constitution. So there would be a conflict between the Constitution’s terms on gender proportions, and its terms on the overall numerical strength of these organs. Besides such contretemps in fundamental principles, the Attorney-General urged, unduly-large national legislative bodies would place the citizen under an undue tax burden. Upon weighing such imponderables attendant on an all-new Constitution, the Attorney-General commended an interpretation that supports a progressive realization of the gender-equity principle in elective representation, for the central legislative agencies.

[31] The Attorney-General’s stand is not agreeable to most of the interested parties and the amici curiae. (An exception is to be made for IEBC, which is willing to adopt any position conscientiously adopted by this Court). They urge that the implementation of the gender-equity principle must take place immediately.

[32] CAJ, through its chief officer, Mr. Amollo, takes a lone stand, as follows. In principle, the gender-equity rule should be given immediate effect. However, it is to be realized that imprecision in the language of the Constitution occurred at the last stages of negotiating the provisions. Parliament itself, Mr. Amollo proposes, should, within certain phased-out time frames, take action to give meaning to the gender-equity principle. He invokes Article 100 of the Constitution, which provides that:

“Parliament shall enact legislation to promote the representation in Parliament of –

(a) women;

(b) persons with disabilities;

(c) youth;

(d) ethnic and other minorities; and

(e) marginalized communities.”

Mr. Amollo urges that Parliament, which bears an obligation to enact legislation to promote the representation of women, has a five-year leeway under the Fifth Schedule to the Constitution. He asks the Court to require that the five-year legislation span be complied with and that, within that time-frame, the one-third, two-thirds gender-equity principle be realized.

[33] Such a compromise does not feature in the submissions by CIC and CMD. Their Advocates (M/s. Aruwa and Ligunya for the former; Mr. Mwenesi and Ms. Kimani for the latter) contend that there never was any controversy as to the interpretation of Article 81(b) of the Constitution which states that “not more than two-thirds of the members of elective public bodies shall be of the same gender.” Counsel urge that, as to the immediacy of implementation of the gender rule, the position was always clear to the Attorney-General: as there had been a series of consultative meetings running from May 2011 to September 2012, involving civil society, parliamentary representatives and members of the Executive, on the issue of the implementation of Article 81(b). It had always been CIC’s and CMD’s understanding that the terms of Article 81(b) were for implementation during the general elections of 4 March 2013. Counsel submitted that to interpret the relevant provisions as requiring progressive realization would be inconsistent with a holistic reading of the Constitution; and he invoked, to that intent, a passage in the Ugandan case, Olum v. The Attorney-General of Uganda [2002] E.A. 508 [the principle of which had been relied on by Majanja, J in U.S.I.U. v. Attorney-General & Another [2012] eKLR]:

“[T]he entire Constitution has to be read as an integrated whole and no particular provision destroying the other but each sustaining the other. Constitutional provisions must be construed as a whole in harmony with each other without insubordinating any one provision to the other.

[34] Learned counsel Mr. Mwenesi, for CMD, expressed disagreement with the CAJ position: that it should take Parliament as much as two election cycles to attain compliance with the gender-equity principle. Learned counsel, while acknowledging the five-year leeway for Parliament to comply, states a case based on foreboding: that as the said five-year period expires on 27August 2015, Parliament runs the risk of being declared unconstitutional as from that date.

[35] Another amicus curiae, Katiba Institute argues in favour of immediate realization of the gender-equity principle: for the very principle running through the Bill of Rights, of non-discrimination, indeed, demands equal sharing in the elective assemblies, as between the male and the female gender. Learned counsel, Mr. Sing’oei, for Katiba Institute, urged that this Court do start from the foundation that the one-third reserved gender representation is only the minimum; and that the functioning of progressivity has to begin from that threshold. Counsel impeaches Parliament’s tardiness in passing law to promote the representation of women in accordance with the terms of Article 100(a) of the Constitution. What is the effect of a possible delayed action by an elected body, in terms of the crystallization of rights such as may be claimed by individuals, or social groups? This specific jural question is not addressed by counsel. But Mr. Sing’oei still urged that Parliament’s delays are untenable, and must give way to asserted rights: women being held entitled to equal representation in the elective national constitutional organs. For such “delays”, counsel submitted, the Court should hold Parliament’s conduct to be unconstitutional. Counsel did not, however, commit himself as to whether an elective body suffering from the effects of alleged legislative tardiness should be regarded as unconstitutional. Yet this, as we will later signal, is an issue of fateful significance, in terms of the sustainability of the constitutional order itself.

[36] Those interested parties and amici curiae who objected to the principle of progressivity in the realization of gender-equity in the national elective bodies, contend that the notion of progressivity where relevant under the Constitution, has clear application only with regard to social and economic rights under Article 43; and with regard to persons with disabilities under Article 54. It was contended that the Constitution does not associate the principle of progressivity with regard to the conduct of elections, or the proscription of gender discrimination as contemplated in Article 27(6) and (8).

[37] To reinforce the case against progressivity as a principle in the realization of gender equity in the national elective bodies, the National Gender and Equality Commission invokes the imperative of safeguarding the separation of powers. NGEC, through its counsel M/s. Nyaoga and Imende, contend that the ground- operations in developing standards and functionalizing the gender rule are reposed in the Executive, the Court being left only with the single-event task of adjudging upon compliance or breach; and that, for the Supreme Court, the sole task is to give effect to the fundamental rights and freedoms, the values and principles of governance, as declared in the Constitution.

[38] Both the Commission on the Administration of Justice and Katiba Institute favour a relatively interventionist approach by the Judiciary, for the purpose of ensuring the protection of the marginalized; they urge that the female gender has, historically, been marginalized by the political system, and that to this social category, the Court should be guided by goals of “substantive equality”.

[39] Mr. Mwenesi, for CMD, submits that it is an instance of discrimination, that the Government should fail to introduce appropriate legislation to secure gender equity in the State’s national elective bodies; such an omission offends the safeguard of Article 27(1) of the Constitution, which stipulates that “Every person is equal before the law and has the right to equal protection and equal benefit of the law”; or Article 27(3) which provides that “Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”

[40] Counsel’s powerful argument on the safeguards for equality and freedom from discrimination, however, proceeded on the premise that the rights in question are cut-and-dried and fully vested, so that in respect of them, right and wrong spoke for itself; no legal argument was advanced on the basis that the Constitution’s guarantees were wholly new, and would have to be implemented in a progression beginning from the status quo of the yesteryear. This element in counsel’s submissions, in our opinion, bears a forensic shortfall that must be taken into account in rendering this Advisory Opinion.

[41] It was CMD’s position that the Attorney-General, by calling for a progressive approach to the gender-equity principle, was seeking to limit a right guaranteed under Article 27 of the Constitution – and so he must first fulfil the terms of Article 24 which stipulates that:

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.....”

Mr. Mwenesi submitted that no such limitation could be allowed, because the Attorney-General had not secured the enactment of a law to impose the proposed limitation. This argument, however, does not address the Attorney-General’s essential argument: that there is a series of provisions in the Constitution itself that lacks harmony as to the scope and time-span of the guarantees made. The contest, in this regard, is conducted at cross-purposes: and the Court must set its sights on, firstly, the clear intent of all the safeguards, and secondly, the manifest matter of judicial notice – that implementation of the guarantees commences from a pre-Constitution status quo, into the transformative phase of the new constitutional order.

[42] CMD has further built its case on the terms of Article 4 of the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) which thus provides:

“1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.”

CMD has clearly taken the position that such variable, discretionary, regulatory approaches to gender equality, do place positive obligations on the Kenyan State, by virtue of the current Constitution. Although such a stand calls for explication, CMD merely asks the Court to place a duty on Parliament and the Attorney-General to employ appropriate provisional measures to eliminate gender discrimination. Such an obligation, as Mr. Mwenesi submitted, is lodged in the Constitution by the fact that CEDAW has been adopted under Article 2(6) which provides that –

“Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”

[43] ICRG takes a different position: that the equality and anti-discrimination rights set out under Article 27 of the Constitution are not, in essence, crystallized rights for any particular mode of application, but are in the nature of principles to guide public actions.

[44] In summary, two distinct and contrasted approaches have emerged, in relation to the applicability of Article 81(b) of the Constitution as read alongside other provisions. The first contends that Article 81(b) as read with other Articles requires a “progressive realization” of the enforcement of the ender-equity rule. The implication is that the rule need not be implemented during the general elections of 4 March 2013, but that it has to be implemented or realized in stages, through legislative, policy-making, and other measures.

[45] In direct opposition to the foregoing approach, it is contended that the one-third gender rule embodied in Article 81(b) of the Constitution must be realized immediately and at the general elections of 4 March 2013.

[46] We have benefited from the learned submissions of counsel, and on that basis we re-examine the question: whether Article 81(b) as read with other provisions of the Constitution requires a progressive realization of the one-third gender rule, or requires the same to be implemented during the general elections of 4 March 2013?

[47] This Court is fully cognisant of the distinct 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. Learned counsel Ms. Thongori aptly referred to this phenomenon as “the socialization of patriarchy”; and its resultant diminution of women’s participation in public affairs has had a major negative impact on the social terrain as a whole. Thus, the Constitution sets out to redress such aberrations, not just through affirmative action provisions such as those in Articles 27 and 81, but also by way of a detailed and robust Bill of Rights, as well as a set of “national values and principles of governance” [Article 10].

[48] From the foregoing facts, arguments and standpoints, this Court, by a majority, has identified the broad concerns which it should bear in mind, in rendering an Advisory Opinion.

(a) What constitutes the “progressive realization of a right?”

(b) How should general principles declared in the Constitution be interpreted, in determining the content, and scheme of enforcement of safeguarded rights?

(c) Is it appropriate to treat the general guiding principles in the Constitution in the same way as specific, quantized rights declared in the same Constitution?

(d) Where the Constitution requires the Legislature (or any other organ) to take certain steps for the realization of a particular rights or welfare situation, how is such to be timed? does the Legislature have a discretion?

(e) Suppose such a requirement is placed on a collective, programme-bound and life-time-regulated organ such as the National Assembly, can the right be presumed to have crystallized, notwithstanding that no legislative measure was passed – on the principle that there has been some intolerable default?

(f) Suppose the default in realizing the gender-equity principle is more directly occasioned by the pre-election process, by the actions of political parties which are essentially political organizations, would the resultant elected-assembly be adjudged to stand in violation of the terms of the Constitution?

(g) Under what circumstances is the Constitution’s prescribed membership-quota amenable to immediate or to progressive realization? Does interpretation in favour of a progressive application contradict the principle of the holistic implementation of the Constitution?

(h) Is it the case that the interpretation calling for progressivity offends the constitutional principle of separation of powers, because the Judiciary has no role in standard-setting and implementation which are to be restricted to the Executive Branch?

(i) Can it be contemplated that an interpretation favouring the immediate realization of the gender-equity principle, could lead to the inference that the National Assembly or Parliament, as constituted following the general elections of March 2013, is unconstitutional?

(j) Considering that the Supreme Court, by the Supreme Court Act, 2011 (Act No. 7 of 2011) is required to [s.3(a)] “assert the supremacy of the Constitution and the sovereignty of the people of Kenya”, how would this Court, in the instant case, perform its role as the guardian of the public interest in constitutional governance by declaring the parliamentary pillar of the constitutional order to be a nullity? How could the constitutional order, in such circumstances, be saved? How would the sovereignty of the people be secured against a possible governance vacuum?

[49] The concept of “progressive realization” is not a legal term; it emanates from the word “progress,” defined in the Concise Oxford English Dictionary as “a gradual movement or development towards a destination.” Progressive realization, therefore, connotes a phased-out attainment of an identified goal. The expression gained currency with the adoption of the Universal Declaration of Human Rights in 1948 – and this landmark international instrument stepped up the growth of the “human rights movement,” worldwide. The legal milestones in this development were later marked by other instruments: such as the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Political Rights (ICESCR). Such instruments introduced a set of expressions that has become part of the standard language of international human rights jurisprudence. Such language entails no technicality, but is simply concerned to prescribe the extent of a State’s obligation in the realization of rights embodied in the human rights Conventions.

[50] Article 3 of the ICCPR states that:

“The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.”

On the same lines, Article 2 of the ICESCR thus states:

“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

[51] Article 3 of the Convention on the Elimination of All forms of Discrimination Against Women, 1981 (CEDAW) states that:

“States Parties shall take in all fields, in particular in political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for purposes of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men.”

[52] It is clear to us that the Constitution of Kenya, 2010 which generously adopts such language of the international human rights instruments, draws inspiration from them.

[53] We believe that the expression “progressive realization” 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.

[54] Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground-situations, and of such open texture in the scope for necessary public actions. A consideration of different Constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a Constitution takes such a fused form in its terms, we believe, a Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, a norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.

[55] It is on the basis of the foregoing principles, that we will consider the gender-equity question under the Constitution. The Constitution has prescribed certain gender minima to be met in both elective and appointive public bodies. These quotas are to be seen as a genre of affirmative-action programmes, aimed at redressing the social aberrations and injustices of the past. Thus, membership of certain Constitutional Commissions is subject to certain gender prescriptions. It is provided as regards the Judicial Service Commission [Article 171(2)], that membership shall consist of:

(d) one High Court judge and one magistrate, one a woman and one a man...

(f) two advocates, one a woman and one a man...

(h) one woman and one man to represent the public interest....”

[56] The foregoing example demonstrates that, so far as the Judicial Service Commission is concerned, it is for certain that the gender-equity rule of one-third-to-two-thirds is immediately realizable. The normative prescription is clear, and readily enforceable; the required numbers of male and female members are specified, and the mechanism of bringing them to office clearly defined.

[57] The Judicial Service Commission is both an appointive and elective body. As there is clear provision on how the women members are to be elected, the Commission will always have a minimum of three women out of eleven members: which falls short of the one-third-to-two-thirds gender rule. But were the female membership of the Commission to rise to four out of eleven, then there would be no basis for claiming the existence of any breach of the terms of the Constitution. But what provisions dictate that the number of female members of the Commission must rise from at least three to the figure of four? By Article 27 (8) of the Constitution, failing a purely providential attainment of the figure of four, the State’s duty would be to take “legislative and other measures” to have the number of women-members raised accordingly.

[58] From the foregoing example, it is clear that the realization of a female membership for the Judicial Service Commission, of three, is immediate; but the attainment of the number of four is progressive, being dependent on the State’s further action.

[59] This leads us to the inference that 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; it depends on the nature of the right in question; it depends on the mode of constitution of the public body in question (e.g. appointive or elective; if elective, the mode and control process for the election); it depends on the identity and character of the players who introduce the candidates for appointment or election; it depends on the manner of presenting candidature for election or nomination.

F. IMMEDIATE REALIZATION OF THE GENDER-EQUITY RULE, AND FOR GENERAL ELECTIONS OF MARCH 2013?

[60] The proponents of immediate implementation of the gender-equity rule have placed a premium on the terms of Article 81(b) of the Constitution, in particular its adoption of the word “shall”:

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

The assumption made is that the term “shall” connotes a mandatory obligation, so the rule must be enforced immediately. This contention was a factor in the Attorney-General’s mind, and he faced it by urging that the word “shall” as applied in Articles 81(b) and 27(8) of the Constitution, in fact, bore a “permissive” connotation and, therefore, the one-third gender rule was for progressive realization.

[61] After considerable reflection upon this point, we have come to the conclusion that 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. And any obligation assigned in mandatory terms, but involving protracted measures, legislative actions, policy-making or the conception of plans for the attainment of a particular goal, is not necessarily inconsistent with the progressive realization of a goal. This position does not change, notwithstanding that the word “shall” may have attended the prescription of the task to be performed by the State. The word “shall” in our perception, will translate to immediate command only where the task in question is a cut-and-dried one, executed as it is without further moulding or preparation, and where the subject is inherently disposable by action emanating from a single agency. But this word “shall” may be used in a different context, to imply the broad obligation which is more institutionally spread-out, and which calls for a chain of actions involving a plurality of agencies; when “shall” is used in this sense, it calls not for immediate action, but for the faithful and responsible discharge of a public obligation; in this sense, the word “shall” incorporates the element of management discretion on the part of the responsible agency or agencies.

[62] The word “shall”, in this new dimension, has gained currency in current human rights treaties, essentially to address the tendency on the part of States Parties to resile from their obligations to institute implementation measures. From that analogy, we perceive the word “shall” as an emphasis on the obligation to take appropriate action, in the course of the progressive realization of a right conferred by the Constitution.

[63] Relevant example is afforded by Article 7 of CEDAW, which thus states:

“States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and in particular, shall ensure to women, on equal terms with men, the right:

(a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;

(b) To participate in the formation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;

(c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.”

We have asked ourselves whether the use of the word “shall”, in that instrument, can by itself eliminate discrimination against women in the political and public life immediately. Even though the word “shall” has been sued, it is clear to us that the objectives to be attained through State action are of such a nature that they can only be realized progressively. Indeed, the Convention places a duty on the State Parties, in their regular reports to the managing committees, to announce the measures which they have taken over a certain period of time, for the purpose of attaining the specific goal.

[64] Article 27(8) of the Constitution leaves no doubt that its language is distinctly inspired by that of the United Nations Conventions; it states:

“In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”

“To give full effect to the realization of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.”

Since the task is expressed as “to give full effect”, it follows that the rights in question, which are civil and political in nature, are not capable of full realization unless the State takes “certain specified measures.” Such unspecified measures, it is clear to us, can only be taken in stages, over a period of time, and by means of positive and good-faith exercise of governance discretion.

[65] We take judicial notice that the passage of legislation [“legislative measures”] to redress an injustice, or to deliver public goods, is not the single execution-oriented act that can be discharged immediately upon command; it is, inherently, a process and must run over time, in the context of supportive measures, and responsible exercises of discretion. It involves the conduct of studies, and the development of legislative proposals. Indeed, by the Constitution, the development of legislation is no longer the preserve of Parliament, or the legal draftspersons in the State Law Office; public participation in the legislative process is a constitutional imperative.

[66] Affirmative action programmes require careful thought, multiple consultations, methodical design, co-ordinated discharge. Such measures cannot, by their very nature, be enforced immediately.

[67] It was argued for some of the parties and amici curiae that the progressive approach to the realization of certain rights is not tenable: because only the economic and social rights provided for in Article 43 of the Constitution are amenable to the progression mode. It was contended that for the Article 43-type of rights, what is at stake is resource outlay; whereas, for rights such as gender-equity rights, the question is only the political will: so the Courts should merely make orders requiring a progressive political will. We are not persuaded by this reasoning. We take judicial notice that women’s current disadvantage as regards membership of elective and appointive bodies, is accounted for by much more than lack of political will. It arises from deep-rooted historical, social, cultural and economic-power relations in the society. It thus, must take much more than the prescription of gender quotas in law, to achieve effective inclusion of women in the elective and appointive public offices. For the female gender to come to occupy an equitable status in civil and political rights, the State has to introduce a wide range of measures, and affirmative-action programmes. 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. It is relevant in this regard, that Article 27(8) of the Constitution calls for “legislative and other measures” to be taken by the State, for the realization of the gender-equity rule. That such “other measures” are generic, underlines the draftsperson’s perception that the categories of actions, by the State, in the cause of gender-equity, are not closed.

[68] We are concerned by the fact that none of the counsel who urged the immediate enforcement of the gender-equity rule, devoted their attention to the inherently different paths of enforcement for a specific, accrued right on the one hand, and a broad, protective principle on the other. It is clear to us that Article 81 of the Constitution, which bears the heading “general principles for the electoral system”, is a statement of general principles; these principles underpin the electoral system under which general elections are to be conducted on 4 March 2013; the gender-equity principle in Article 81(b), regarding the one-third-and-two-thirds criterion, does not stand alone, but is one of a set of principles; the general principles interlock with and operate in common with other provisions in Articles 81-92 of the Constitution. The relevant Chapter [7] of the Constitution is concerned with “Representation of the People”, and Article 81 is about the “electoral system” and “public elective bodies.” “Electoral system”, in this regard, means the policies, laws, regulations, processes, environment and institutions that determine the conduct of elections in Kenya; and “public elective bodies” refers to all public institutions the composition and membership of which is determined through some form of election. Thus, Article 81 is not confined to the National Assembly, the Senate, or County Assemblies; it contemplates all public bodies properly so-called, which hold elections for their membership. In this context, it is clear to us that the principle in Article 81(b) of the Constitution is a statement of aspiration: that wherever and whenever elections are held, the Kenyan people expect to see mixed gender.

[69] Counsel, on the contrary, urged that the terms of Article 81(b) signify a concrete right, the content of which is ascertainable and capable of single-act implementation. As already remarked in this Opinion, Kenya’s Constitution carries both specific normative prescriptions, and general statements of policy and principle: the latter inspire the development of concrete norms for specific enforcement; the former can support the principle maturing into a specific, enforceable right.

[70] We consider that Article 81(b), which stands generally as a principle, would only transform into a specific, enforceable right after it is supported by a concrete normative provision. What is the exact status of Article 81(b)? It is, at this stage, to be read together with Article 177, on “Membership of county assembly”: and this leads us to the conclusion that, as regards the composition of county government, Article 81(b) has been transformed into a specific, enforceable right.

[71] When, however, we examine Article 81(b) in the context of Articles 97 [on membership of the National Assembly] and 98 [on membership of the Senate], then we must draw the conclusion that it has not been transformed into a full right, as regards the composition of the National Assembly and Senate, capable of direct enforcement. Thus, in that respect, Article 81(b) is not capable of immediate realization, without certain measures being taken by the State. Article 81(b) is also not capable, in our opinion, of replacing the concrete normative provisions of Articles 97 and 98 of the Constitution: these two Articles prescribe in clear terms the composition of the National Assembly and the Senate. For Articles 97 and 98 to support the transformation of Article 81(b) from principle to right, the two would have to be amended to incorporate the element which learned counsel, Mr. Kanjama referred to as the “hard gender quota.” In the alternative, a legislative measure [as contemplated in Article 27(8)] would have to be introduced, to ensure compliance with the gender-equity rule, always taking into account the terms of Articles 97 and 98 regarding numbers in the membership of the National Assembly and the Senate.

[72] Neither course of adjustment to Article 81(b) of the Constitution falls within the competence of the Judicial Branch; it is for action lying squarely within the domains of the Legislative and Executive Branches of Government, supported by other proper organs such as the relevant Constitutional Commissions.

[73] Only an adjustment to Article 81(b) following the path we have described above, will fall within the terms of the main clause in Article 81, that “the electoral system shall comply with [the principles enumerated in paragraphs (a) – (e) of the Article].”

G. OPINION ON THE GENDER-EQUITY QUESTION

[74] As 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, it follows – and this is the burden of our Opinion on this matter – that it cannot be enforced immediately. If the measures contemplated to ensure its crystallization into an enforceable right are not taken before the elections of 4 March 2013, then it is our opinion, 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.

[75] That leaves open the question: if Article 81(b) is not applicable to the March 2013 general elections, in relation to the national legislative organs, then at what stage in the succeeding period should it apply?

[76] Learned counsel, Messrs Aruwa and Mohammed called our attention to the pertinent terms of Article 20(3) (a) and (b) of the Constitution, which thus provide:

“In applying a provision of the Bill of Rights, a court shall –

(a) develop the law to the extent that it does not give effect to a right or fundamental freedom; and

(b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom.”

[77] We see as the requisite manner to develop the principle in Article 81(b) of the Constitution into an enforceable right, setting it on a path of maturation through progressive, phased-out realization. We are, in this regard, in agreement with the concept urged by learned amicus Mr. Kanjama, that hard gender quotas such as may be prescribed, are immediately realizable, whereas soft gender quotas, as represented in Article 81(b) with regard to the National Assembly and Senate, are for progressive realization. We have also benefited in developing this line of reasoning, from the learned submission of Mr. Amollo for CAJ.

[78] This, we believe, answers the compelling question raised in contest to the case for progressivity, by learned counsel Mr. Nderitu and Ms. Thongori: When will the future be, as baseline of implementation of the gender-equity rule?

[79] 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], we are of the majority opinion 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.

[80] The foregoing opinion is a basis for action in accordance with the terms of Article 261(6), (7), (8) and (9) under the “Transitional and Consequential Provisions” of the Constitution: by way of the High Court being duly moved to issue appropriate orders and directions.

[81] In the course of arriving at this Opinion we noted certain elements in the submission by counsel, in respect of which we will make a number of observations. Our remarks in this regard inclusively cover the related issues identified earlier, as meriting this Court’s attention.

[82] It was contended that the progressive mode in the implementation of the gender-equity rule would run into conflict with the constitutional principle of the separation of powers: as the Courts would be straying into business falling to the Executive or Legislative Branch. It was being urged that the judicial approach must stand in favour of the accrued-right principle, and it should be held that there had been a breach of Article 81(b) of the Constitution. We are not, however, in agreement with this contention, as 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 the separation of powers.

[83] The ultimate question was whether, if the Courts were to take the position that a breach of the Constitution would be entailed if the general elections of March 2013 did not yield the stated gender proportions in the membership of the National Assembly and Senate, it was conceivable that the relevant organs would in their membership, be held to offend the Constitution. We would state that the Supreme Court, as a custodian of the integrity of the Constitution as the country’s charter of governance, is inclined to interpret the same holistically, taking into account its declared principles, and to ensure that other organs bearing the primary responsibility for effecting operations that crystallize enforceable rights, are enabled to discharge their obligations, as a basis for sustaining the design and purpose of the Constitution.

[83A] On the gender-equity issue, the Honourable The Chief Justice will read out a minority opinion.

H. PRESIDENTIAL ELECTION: JURISDICTION FOR RESOLVING DISPUTES NOT MENTIONED IN ARTICLE 140 OF THE CONSTITUTION

[84] The learned Attorney-General raises an issue of merit: as to whether an unsuccessful candidate in the first round of the Presidential election under Article 136 of the Constitution is or is not entitled to petition the Supreme Court to challenge the outcome under Article 140. There is a lacuna in the Constitution and, short of a suitable amendment being effected, in accordance with the detailed provisions of Chapter 16 thereof, it is the Supreme Court’s responsibility to make such interpretation as will have the effect of upholding the meaning, intent and integrity of the Constitution as a whole. This is a typical occasion when this Court must provide guidance, as sought by the Attorney-General, for the purpose of upholding the authority of the Constitution.

[85] In relation to Presidential election, the basic provision is set out in Article 136 of the Constitution, as follows:

“(1) The President shall be elected by registered voters in a national election conducted in accordance with this Constitution and any Act of Parliament regulating Presidential elections.”

The Constitution then provides (Article 140) for the resolution of such disputes as may arise from the conduct and outcome of the said election. The relevant provision thus reads:

“(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.”

[86] There is a lacuna in the foregoing provision. Election of the President is a process, beginning from primary elections to the final election which will lead to the identification of the President-elect. Article 140(1) provides for dispute settlement only at the final stage, and not at earlier stages. With no provision on the mode of resolution of disputes at the earlier stages, there would be no express right to seek the Court’s intervention, for instance, in respect of the runner-up position. Such a dispute may be, on the facts, one of merit and, therefore, one to be resolved judicially. The urgency of the issue would remain the same as that which attends dispute-settlement in relation to the position of the President-elect; and accordingly, this would still be a contest on an issue of the Presidential election. What is the proper jurisdiction for resolving such an issue?

[87] Counsel held differing viewpoints on the question. Learned counsel, Mr. Mwenesi for CMD submitted that the Supreme Court’s jurisdiction is adequately provided for under Article 140, and that all matters not covered therein, and touching on the office of President, should be confined to the jurisdiction of the High Court under Article 165 of the Constitution. Learned counsel Mr. Arwa, for CIC, urged that the Constitution does not envisage any electoral challenge at the conclusion of the first round of elections; that any irregularities arising at earlier stages can only be contested at the end of the electoral process; and that when the first round of elections fails to produce an outright winner, then the electoral process is incomplete and cannot be challenged until after the conclusion of the second round.

[88] Similarly, Mr. Sing’oei for Katiba Institute, urges that a dispute at the first round which does not produce a President, will not be ripe for an invocation of the High Court’s jurisdiction. Learned counsel submits that even though it is the Supreme Court that has exclusive jurisdiction in respect of Presidential-election disputes, this jurisdiction only takes effect upon declaration of a President-elect; and consequently, disputes arising before the last round should not be determined by the Supreme Court.

[89] Amicus curiae Mr. Kanjama, similarly, submits that disputes occasioned by the first round of Presidential elections properly belong to the High Court’s jurisdiction; and that the Supreme Court’s jurisdiction should be held to be limited to the matters specified in Article 140.

[90] Learned counsel Mr. Amollo, for CAJ, by contrast, submits that an aggrieved person is entitled to petition the Supreme Court to challenge the outcome of the

first round of the Presidential elections; and that it is inapposite to adjudicate an election dispute at the final stage when it preceded the run-off election. Mr. Amollo urged that the Supreme Court should apply the provisions of Article 140 of the Constitution to the resolution of all disputes arising from the conduct of Presidential elections – whether or not this be expressly provided for.

[91] In agreement is learned counsel Mr. Mungai, for the International Centre for Constitutional Research and Governance. He submits that all candidates in the Presidential election have equal rights to contest the outcome; and in this regard, the first round of election is just as important as the second round. Counsel urges that the validity of the run-off election can only be properly determined when the Supreme Court has heard and determined any grievance relating to the first round. Only in this way, counsel urged, would the Supreme Court be able to deal fairly and conclusively with disputes arising from the process of Presidential election.

[92] A similar position is taken by learned counsel, Mr. Nyamodi for the IEBC; he urges that it is desirable the Supreme Court should resolve Presidential election matters with finality, and should insulate petitions relating to such elections from the residual jurisdiction of the High Court.

[93] As signalled in this Court’s first Advisory-Opinion application [In the Matter of the Interim Independent Electoral Commission as the Applicant, Sup.Ct. Const. Application No. 2 of 2011], an 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 a major governance issue; when the issues involved are weighty and of constitutional significance; and when the public interest in the matter is manifest.

[94] We have read the many documents, including depositions and submissions lodged by the parties and by the amici curiae; and we have attentively heard all the learned counsel. We are unanimously confirmed in our persuasion that the two issues referred to this Court by the Attorney-General who sought an Advisory Opinion, fall within the broad terms guiding us in rendering such an opinion.

[95] Several questions have emerged, which we must address:

(a) under what circumstances does a dispute emerge, as contemplated in Article 140 of the Constitution?

(b) are there categories of potential disputes in respect of Presidential elections, other than those referred to in Article 140?

(c) how should the various categories of Presidential-election disputes be resolved?

“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.”

It is clear that the aggrieved, in such a case, may be a candidate in the election, or indeed, any other person. The petitioner will be contesting the status of the President-elect: contesting the declaration of a certain candidate as President-elect (Article 138(1)); contesting the declaration from the first round of election – that a certain candidate has received more than half of all the votes cast in the first round of election and so this candidate is destined to be President-elect if the candidate meets other prescribed criteria; contesting the declaration that a certain candidate has won at least twenty-five per cent of the votes cast in each of more-than-half of the counties, and so this candidate is destined to be President-elect; contesting fresh Presidential elections held by virtue of Article 138(5), when the first round of elections results in no candidate being elected as President in accordance with Article 138(4) of the Constitution.

[97] It is clear that Article 140 of the Constitution makes no provision regarding the procedure to be followed where a dispute emanates from the fact that nobody is elected as President under Article 138(4), and when this fact leads to fresh elections under Article 138(5). When such is the case, it follows that there will be no President-elect.

[98] Article 138(5) provides that if no candidate is elected, a fresh election is to be held within 30 days after the earlier election: but in this fresh election, candidature is limited; only two candidates from all the original Presidential-election candidates will feature as candidates. These two candidates must be only those who obtained the greatest number of votes in the original Presidential election.

[99] Article 140 is silent on the mode of resolving such dispute as may arise in the course of ascertaining the two top candidates to proceed to the fresh Presidential elections. Such a dispute could, for instance, relate to the vote-tallying process: because the return is alleged to be invalid, or some related matter. Or one of the two candidates could be claiming to have fully met the requirement for being declared President-elect [Article 138(4)] and so there is no need to go to fresh election. If the return for the first round of Presidential election is disputed, is it tenable that the second-round, fresh election can be held? It would not be fair – and this would aggrieve the complainant, apart from undermining the legitimacy of the electoral process. Clearly, this Court must stand on the side of fairness, legitimacy and constitutionality.

[100] It is clear to us, in unanimity, that 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. Article 137 of the Constitution provides for “qualifications and disqualifications for election as President” – and this touches on the tasks of agencies such as political parties which deal with early stages of nomination; it touches also on election management by the Independent Electoral and Boundaries Commission (IEBC). Therefore, outside the framework of the events of the day of Presidential elections, there may well be a contested question falling within the terms of the statute of elections, or of political parties. Yet still, the dispute would still have clear bearing on the conduct of the Presidential election.

[101] Does the entire question concerning Presidential elections belong to the Supreme Court’s jurisdiction? Or is the Supreme Court’s power limited by the express language of Article 140 of the Constitution? An analogy may be drawn with other categories of elections; Article 87(2), on electoral disputes, thus provides:

“Petitions concerning an election, other than a Presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.”

It is clear that Presidential elections have separate provisions, in Article 163(3)(a) which provides:

(a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140……”

On a literal construction, it may be stated that the foregoing reference to “the elections to the office of President” suggests the draftspersons contemplated that several rounds of election may be involved, before the emergence of a duly elected President.

[102] Besides, a reading of Article 87(2) alongside Article 163(3) suggests, as we perceive it, that the Supreme Court was intended to adjudicate upon all such disputes as would arise from the Presidential election. We find 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 election.

[103] From our conclusion on the foregoing point, a practical problem arises, in respect of which we will express an opinion: Must the second round of Presidential elections be held within 30 days, regardless of whether there is a justiciable dispute as to the conduct of the first round? For instance, regardless of the fact that the return of the first round is disputed?

[104] It is our unanimous opinion that 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.

[105] Such a position would have implications for the time-lines prescribed under the Constitution; and it is proper to give a further opinion in this regard. Is it practicable to conduct a second round of Presidential elections within 30 days, in accordance with Article 138(5) of the Constitution, even when the first round of elections is disputed?

I. OPINION ON THE SUPREME COURT’S JURISDICTION AT THE SEVERAL STAGES IN THE PRESIDENTIAL ELECTION

[106] A purposive approach would take into account, firstly, the agonized history attending Kenya’s constitutional reform; secondly, the crucial importance of the electoral process in the current constitutional dispensation; and thirdly, the overwhelming case for free, fair and efficiently-conducted elections. In this context, 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 our unanimous opinion, 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. Within such guidelines, the Supreme Court, acting by virtue of its rule-making powers under Article 163(8) of the Constitution, would establish more specific, and efficient time-lines to guide the hearing of first-round election disputes.

[107] This opinion, on the second question raised by the Attorney-General, gives an indication of the course of practice, in the absence of any relevant constitutional change, or new legislation on the subject.

DATED and DELIVERED at NAIROBI this 11^th day of December, 2012.

JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

I certify that this is a true Copy of the original

1 Introduction

1.1 The Attorney General filed this request for an advisory opinion on 10th October 2012. He seeks this Court\'s advisory opinion on

the following questions:

(a) Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1)(b), Article 116, and Article 125 of the Constitution of the Republic of Kenya require progressive realization 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.

(b) 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?

1.2 At the mention of this case on 8th November 2012, The Commission on Administrative Justice (CAJ), The Independent Elections and Boundaries Commission (IEBC), the Commission on the Implementation of the Constitution (CIC) and the National Gender and Equality Commission (NGEC) were admitted as interested partiesunder Rule 23 of the Supreme Court Rules 2011 (now repealed). The Centre for Rights Education and Awareness (CREAW), the Katiba Institute, the Centre for Multi-party Democracy (CMD), FIDA-Kenya, the Kenya Human Rights Commission (KHRC), the International Centre for Rights and Governance (ICRG) and Mr. Charles Kanjama were admitted as amici curiae for the Courtunder Article 22 (3) (e) of the Constitution and Rule 54 of the Supreme Court Rules 2011 (now repealed).

1.3 On this date, certain amiciCuriae addressed us on issues of jurisdiction.

2 Jurisdiction

2.1 The objections on lack of jurisdiction of this court articulated by CREAW, CMD and Mr. Kanjama are that the issue of gender representation in the National Assembly and Senate is a pure national government issue that does not concern county governments. Neither is the election of a President, nor any challenge that may come from such an election. They argue that the issue of gender representation does not touch county governments as an elaborate procedure for resolving this has already been prescribed by Article 177 of the Constitution. In support of this position, they rely on the authority of Petition no. 1 of 2011, In Re the Independent Electoral and Boundaries Commission where this honourable court refused to apply its jurisdiction over a matter dealing with the electoral boundaries.

2.2 CREAW and CMD further object to the Attorney General\'s reference for an advisory opinion on the ground that the reference is an abuse of the process of court. They argue, that being the case, this court’s jurisdiction is thereby vitiated. They claim that it should be a bar from seeking this opinion because the Attorney-General has not stated whether, as principal legal advisor to the government, his opinion over this matter has been sought, and if sought, what opinion he gave, and if given, what action was taken on the basis of the opinion.

2.3 CREAW further objects to this court\'s jurisdiction on grounds that the jurisdiction in an advisory opinion, being discretionary in nature, can only be sought when the party seeking is in a genuine dilemma in relation to the subject matter. CREAW opines that the Attorney-General is not in any dilemma as there are two pending bills before the Parliament that have not been removed from the house\'s agenda. These bills seek the implementation of the two-thirds gender principle.

2.4 Lastly, CREAW is of the opinion that the Attorney-General is guilty of an abuse of process of court by selectively citing the decision in Federation of Women Lawyers & Others vs Attorney General [2011]eKLR where the court held that the two-thirds gender principle was subject to progressive realization. The Attorney General, though a party to other decisions of the High Court that held otherwise has neither disclosed these decisions nor sought to distinguish them. The cases in question are: Centre for Rights Education and Awareness & Others vs. the Attorney General and Others (Nairobi High Court Constitutional Petition Number 16 of 2011); MilkaAdhiamboOtieno& Another vs. The Attorney General & Another (Kisumu High Court Constitutional Petition Number 33 of 2011) and; Centre for Rights Awareness & Others vs. The Attorney General and Another (Nairobi High Court Constitutional Petition Number 208 of 2012 as consolidated with Nairobi High Court Constitutional Petition Number 207 of 2012.

2.5 The Attorney General in response states that under Article 163(6) the Supreme Court has a discretionary jurisdiction to give an Advisory Opinion at the request of the National Government, any State Organ or County Government with respect to any matter concerning county government. The Jurisdiction of this Court has now been stated in Constitutional Application No. 2 of 2011 in The Matter of Interim Independent Electoral Commission where the Court set the guidelines and the sphere of jurisdiction of this Court in giving advisory opinion. It is the Attorney General\'s position that this reference squarely falls within the four corners thereby set by this court in that decision.

2.6 For the IEBC, Mr. Norwojee responded stating that the matters of national and local government were closely intertwined. As an illustration, he pointed to Articles 110 and 111 of the Constitution, which give procedures for the passing of bills ?concerning county governments.These bills would be discussed and passed by the National Assembly and the Senate. Therefore, one could see a nexus as to how the composition and validity of the various houses of Parliament affected county governments.

3 Two-thirds Gender principle: Immediate or Progressive realization?

3.1 Various provisions of the Constitution are implicated in the resolution of this question. I will reproduce the various Articles of the Constitution as they relate to arguments of Counsel for and against the immediate realization of the two-thirds gender rule.

3.2 Article 97 decrees as follows:

97. (1) The National Assembly consists of—

(a) Two hundred and ninety members, each elected by the registered voters of single member constituencies;

(b) Forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency;

(c) Twelve members nominated by parliamentary political parties according to their proportion of members of the National Assembly in accordance with Article 90, to represent special interests including the youth, persons with disabilities and workers; and

(d) The Speaker, who is an ex officio member. Nothing in this Article shall be construed as excluding any person from contesting an election under clause (1) (a).

3.3 Article 98 decrees as follows:

98. (1) The Senate consists of—

(a) Forty-seven members each elected by the registered voters of the counties, each county constituting a single member constituency;

(b) Sixteen women members who shall be nominated by political parties according to their proportion of members of the Senate elected under clause (a) in accordance with Article 90;

(c) Two members, being one man and one woman, representing the youth;

(d) Two members, being one man and one woman, representing persons with disabilities; and

(e) The Speaker, who shall be an ex officio member.

(2) The members referred to in clause (1) (c) and (d) shall be elected in accordance with Article 90.

(3) Nothing in this Article shall be construed as excluding any person from contesting an election under clause (1) (a).

3.4 The composition of the two houses must be read against Article 81, which states:

The electoral system shall comply with the following principles––

(a) ...

(b) Not more than two-thirds of the members of elective public bodies shall be of the same gender;

(c) ...

(d) Universal suffrage based on the aspiration for fair representation and equality of vote; and

(e) ...

3.5 The Attorney General argues that there has been no consensus on the interpretation of these Articles (81 (b) as read with articles

27 (6), 27 (8), 96, 96, 98, 177 (1), 116 and 125 of the Constitution). He is concerned that the time when these articles strictly apply is not clear.He states that there are prevailing diverse interpretations, leading to likelihood that the gender quota may not be realized in the elections of March 2013, which may lead to a constitutional crisis in that the National Assembly may be declared unconstitutional.

3.6 The Attorney General further explains that the legitimate expectation of Kenyans would have been that the two-third gender principle would be implemented in the Political Parties Act, Act No. 11 of 2011, and the Elections Act, Act No. 24 of 2011.This legislation, however, is devoid of any mechanisms to implement the principle. He highlights that his office has been involved in the drafting of certain bills that sought to provide a formula for the realization of the electoral gender quotas. The bills, namely, the Constitution of Kenya (Amendment) Bill, 2011 and the Constitution of Kenya (Amendment) Bill, 2012, have however not been passed by Parliament. .

3.7 The Attorney General then turns his focus on the use of the word ?shallin Article 81. He posits that the Supreme Court\'s interpretation of the word will result in either the provision decreeing its immediate or progressive implementation. Citing various authorities, including R v THE MINISTER FOR HEALTH AND THE MEDICALPRACTITIONERS AND DENTISTS BOARD, EX PARTE AVENUE HEALTH CARE LTD, NBI HC JR MISC APPL. 280 OF 2007 and the Black\'s Law Dictionary, 2nd Edition,he states that the interpretation of the word ?shallhas not always been as an imperative, leading to mandatory application, and the Court can therefore interpret the word to achieve a progressive realization of these provisions.

3.8 The Attorney General proceeds to delve into a comparative study of how quota systems have worked in Africa, giving examples of South Africa, Mozambique, Senegal, Rwanda, Uganda and Tanzania. In all these countries, he illustrates that the provision of quotas has resulted in a rise in representation of women in their respective legislative assemblies, but has also spurred some problems that are unique to each country.

3.9 The Attorney-General concludes by stating that the mandatory number of women in the National Assembly in accordance with Article 97 (1) (b) amounts to a mere 13.4%. Should the electorate not elect sufficient numbers to comply with the two-thirds gender principle, he posits that the only way to achieve compliance would be by nominations. This would result in Parliament having higher numbers that those expressly stipulated with considerable financial implications for the taxpayer. He therefore states that when all these factors are considered, the tenable interpretation in respect of this issue would be one that supports progressive realization of the principle.

3.10 The Interested parties (except CAJ that is not wholly categorical on the issue, and IEBC that is ready to implement whatever opinion this court gives) and amici curiae are united that the Attorney General\'s position is wrong. All assert that the implementation of this provision should be immediate. The IEBC takes a very neutral standpoint on this issue, stating that it will abide by the decision of the Court and will conduct the March 4, 2013 elections in accordance with as this Court\'s Advisory Opinion.

3.11 CAJ is categorical that the present dilemma is to be blamed on the legislature. Mr. OtiendeAmollo argues that Parliament was responsible for the removal of the provisions implementing the requirements under Article 81 (b). As proof of this, he states that the mechanism- proportional representation, using the counties as electoral colleges- always existed in all drafts of the Constitution, from the Bomas Draft, the Wako Draft, the Harmonised Draft and the Proposed Draft. The provisions only disappeared once the Parliamentary Select Committee on Constitutional Review met with the CoE in Naivasha. Furthermore, Parliament has shot down constitutional amendments that would seek to implement the 2/3 gender principle.

3.12 He is categorical that the implementation should be immediate. However, due to the inaction of Parliament, he seeks to introduce a compromise: under Article 100, Parliament has an obligation to pass legislation that would promote the representation of women. This legislation has been given a time line of 5 years as per the Fifth Schedule. He calls for the Court to pronounce that this is to be strictly followed, achieving the 2/3 gender principle by the next election cycle, that is, in 2017/18.

3.13 The CIC and CMD are both assertive that there has never been any controversy regarding the interpretation of Article 81 (b) of the Constitution. Both CMD and CIC document details of series of consultative meetings have taken place from May 2011 to September 2012 between civil society, Parliamentary representatives and members of the Executive on the issue of the implementation of the provisions of this Article. The cardinal objective of such meetings has always been, in CIC\'s considered opinion, that this provision needs to be implemented by the March 2013 elections. Mr. Nyamodi for CIC argues that to interpret the relevant provisions as requiring progressive realization would be contrary to a reading of the Constitution as a whole. He cites the authority of USIU v AG & ANOR [2012] eKLR, where Majanja J., reiterated with approval the holding in OLUM v THE ATTORNEY-GENERAL OF UGANDA[2002] 2 EA 508:

3.14 CMD further argues that it does not make sense for the Court to grant, as CAJ suggests, a period of 2 election cycles for Parliament to come into conformity with the rule. Mr. Mwenesi argues that though the period within which Parliament is supposed to have passed legislation under Article 100, that period expires on 27th August, 2015. As such, Parliament will find itself being unconstitutional mid-term. He asserts this is not a desirable situation.

3.15 Katiba Institute is assertive that the principle is to be immediately achieved. Mr. Sing\'olei argues that as such, the principal of non-discrimination calls for a 50% representation of women in Parliament, who are slightly higher than 50% of the population. He argues that the affirmative action principle of 1/3 is a minimum, and any progressive realization must proceed from that minimum. He also argues that Parliament by its inaction cannot deny women their entitlement to equality in political representation. The Courts must step in to ensure that the Constitution is complied with.

3.16 All interested parties and amici curiae further state that the words signaling progressive realization have been expressly used in the Constitution with regard to other rights, in particular, socio-economic rights under Article 43. However, except in the case of Article 54 (2) regarding the representation of persons with disabilities, the words progressive realization have never been used in reference to the conduct of elections or to the removal of gender discrimination under Article 27 (6) and (8) of the Constitution. They, therefore, posit that the constitutional requirement that not more than two thirds in elective bodies shall be occupied by the same gender, applies to the March 2013 elections. Their collective argument is that if the intention of the framers of the constitution was as the Attorney General argues and urges, they would have so stated.

4 Separation of powers

4.1 NGEC warns that in delivering this Advisory Opinion, the Court should not overstep its purview and violate the principle of separation of powers. It states that the duty to determine whether a principle has been, is being, or will be realized is an executive function that requires clear standards to be developed. It argues that the role of the Court is to determine whether a legal principle or obligation has been enacted, complied with or implemented. However, in conclusion to its written submissions, it states that this Court\'s concern, as the highest judicial authority in Kenya, should be to give effect to the fundamental rights and freedoms and the values and principles of governance espoused by the Constitution. No other party addresses the Court on this question.

5 Discrimination

5.1 The CAJ argues that our history records the struggle for women’s representation. This history of exclusion owes itself to the patriarchal nature of the Kenyan society. CAJ argues that this is demonstrated by how previous attempts to introduce affirmative action for women representation have been scuttled by a maledominated parliament. Such prejudice, it argues, still exists in today\'s Parliament, as it rejected the two constitutional amendment bills brought by the Attorney General to try and provide mechanisms for the implementation of this constitutional imperative.

5.2 The Katiba Institute agrees with this proposition, stating that the Constitution is well aware of this and states in Article 10 that one of the Constitution\'s principles is the protection of the marginalized. Thus, the two-thirds gender principle recognizes that certain sectors of the society- historically women- have been marginalized by the political system. The Katiba Institute then introduces the concept of ?substantive equality.This, it states is a recognition that formal equality (equality before the law) does not to ensure that women enjoy the same kind of political representation as men. It therefore posits, with reference to ColmO\'Cinneide\'s article “The Right to Equality: A Substantive Legal Norm or Vacuous Rhetoric?”(2008)UCL Human Rights Journalthat the right to equality is interpreted as requiring the elimination of historically rooted patterns of prejudice, discrimination and disadvantage that contribute to the subordination of women.

5.3 CMD perhaps most widely canvasses this issue of discrimination in its submissions. Counsel for CMD argues strongly that it would be discrimination, contrary to Article 27, particularly subarticles (6) and (8) for the government to fail to introduce legislation to secure the principles enacted in the Article and in Article 81 (b). Article 27 states as follows:

27 (1) Everyperson is equal before the law and has the right to equal protection and equal benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

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

(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need. In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

5.4 CMD further argues that any denial of this right must fulfill the requirements under Article 24. Article 24 states:

24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––

(a) the nature of the right or fundamental freedom;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—

(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;

(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and

(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.

(4) ...

5.5 CMD argues that as the Attorney General is seeking to limit a right guaranteed under Article 27, he must fulfill the requirementsof Article 24, in that the limitation should be by legislation that specifically states its intention to limit such rights. It is CMD\'s contention that the Attorney General has not fulfilled this requirement.

5.6 CMD also refers to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). In particular, they refer to Article 4 which states:

1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.

5.7 Here, CMD seeks to proffer a remedy to the State so as to remedy the discrimination that has been dealt upon women in Kenya in this area of political representation. CMD therefore asks the Court to require that Parliament and the Attorney General fulfill the constitutional mandate and install some stop-gap measures to eliminate this discrimination. CMD also argues that Article 4 of CEDAW has constitutional force under Article 2 of the Constitution.

5.8 KHRC and FIDA-KENYAadopt a similar line of argument, referring to the preamble of CEDAW to the effect that discrimination against women violates the principle of equality of rights and respect for human dignity, and is an obstacle to the participation of women on equal terms with men in the political life of their country.Mr. Nderitu, counsel for both of these amicitherefore points to the obligation on the State under Article 7 of the Convention as follows:

States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:

(a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;

(b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;

(c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.

5.9 ICRG argues that Article 27 rights are merely principles against discrimination and not fully rights. He further argued that their existence in the Constitution is as a result by lobbying from women\'s groups, which he referred to as sectarian interests. He further argues that the wording of Article 81 is clear- the provisions therein are principles, not rights or obligations of the State. As such, they do not result in express government obligations.

5.10 Mr. Charles Kanjama argues that the obligations of the State that call for immediate action under Article 27 lie under clauses

(1) – (4). The obligations under clauses (5) – (6) under the Article are more aspirational, and therefore call for progressive realization. Similarly, he argues that the principles under Article

81 are very aspirational, and may never be fully realized when considered realistically. He therefore argues that they should be implemented over a period of time, and thus, progressively.

5.11 The Attorney General has unfortunately not responded to the arguments on discrimination put forward by CAJ, Katiba Institute, KHRC and CMD, even in his reply to the amici\'s and interested parties\' submissions.

6 Issues for Determination

6.1 Having read counsels’ written submissions and heard them in their oral arguments, the issues for determination are anchored on the questions advanced by the Attorney General in his reference for an Advisory Opinion. It is wise to reproduce the questions here:

(a) Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1)(b), Article 116, and Article 125 of the Constitution of the Republic of Kenya requireprogressive realization of the enforcement of the one thirdgender rule or if it requires the same to be implemented during the general elections scheduled for 4th March 2013.

(b) 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?

6.2 Before I make my determination on the questions posed by the Attorney General there is the matter of jurisdiction of this Court to hear the reference which matter was argued upfront as a preliminary objection to the reference. I held I had jurisdiction to hear the reference and I will now give my reasons for so holding.

7 Jurisdiction.

7.1 I have already stated that this Court has jurisdiction in this matter and it is imperative that I dispose with this before going into a consideration of the submissions by counsel on the substantive issues.

7.2 Counsel for CREAW and CMD argue that there is a failure by the Attorney-General to disclose all facts, site all relevant cases that have been decided by other courts and this,therefore, results in an abuse of the process of the Court. It is important to note that one of the duties of an officer of the Court in the administration of justice is to avail before the Court all relevant facts, including those that may be against the officer\'s case. An intentional nondisclosure may make render the proceedings an abuse of court process, especially where such intent is established. Whether this action denies the officer access to court and the court downs its tools on him/her has to be determined.

7.3 Do the AttorneyGeneral\'s actions constitute an abuse of the court process? This Court has had occasion to pronounce itself on when it may hold there has been an abuse of court in Criminal Appeal No. of 2012, ICJ V THE ATTORNEY-GENERAL & 2 OTHERS. In that case Counsel\'s attention had been brought on decided cases on the issues he was raising in his application. Counsel was advised to consider those decisions before arguing his application. Counsel seemed not to consider the advice and the Attorney General argued that failure to do so was an abuse of court, punishable at least by ordering Counsel pay costs. In that application the learned judges considered decided cases on the issue. They clearly identified a clear case of an abuse of court in NishithYogendra Patel v Pascale MirailleBaksh&Anor [2009] eKLRwhere pursuing similar remedies in parallel (competent) courts was seen as an abuse of court process leading to the striking out of the application. The learned judges did not find the conduct of the Counsel amounted to an abuse of court and argued:

“Upon a careful reflection, we would not hold this to be a glaring abuse of Court process. The Supreme Court is only now in the process of clarifying its appellate jurisdiction, through interpretation of statute law in the context of varying casescenarios. The appellant by lodging the appeal, has laid before the Court an opportunity to further consolidate the jurisprudential gains in the earlier decisions.”

7.4 While it is a principle never in dispute that Counsel should bring to the attention of the Court decisions that support their case and those that do not, the failure to do so only attracts reprimand and never amounts to deny them the opportunity to be heard. In this Reference the Attorney General simply swore an affidavit where he concisely laid down his arguments for seeking an Advisory Opinion well aware that the time for comprehensive arguments would take place when the Reference came up for hearing. Indeed, this is what happened and in his address in support of his Reference he canvassed all relevant cases and disclosed all facts. I do not think it was necessary to commit all arguments in a skeleton affidavit whose purpose was to give the Court the basis for the Reference for an Advisory Opinion.

7.3 CREAW and CMD still on the issue that the Reference was an abuse of court argued that the Attorney-General has not revealed whether his opinion was sought on this question, what advice he has given or whether that advice was followed by the Government. Given the criteria given on this question these concerns do not amount to an abuse of process of court and cannot be a basis for lack of jurisdiction to entertain the Reference. There is no legal bar in the court\'s Advisory Opinion jurisdiction that buttresses this position. The objection by CREAW that the Attorney General has not proved that he is in a genuine dilemma fails for the same reason.

7.5 At this point I should revisit my pronouncement on this issue of jurisdiction for References seeking Advisory Opinion in this court. In the Reference Re IEBC the relevant paragraphs on this issue are as follows:

“[37] The said Article 163(6) requires too that any request for an Advisory Opinion is to be “with respect to any matter concerning county government.” In this respect, the relevant question is whether the issue as to “the date of the next general election” relates to county government.

[38] Learned counsel, Mr. Nowrojeewas clear, that this is a question of county government: for the elections the due date of which calls for confirmation, are the very device for establishing county assemblies, and county executives – and that is “county government”. On this point, other counsel, Ms. Kimani, Professor Ghaiand Mr. Njiru, were in agreement.

[39] On the question whether election date is a matter of “county government”, I have taken a broader view of the institutional arrangements under the Constitution as a whole; and it is clear to me that an interdependence of national and county governments is provided for – through a devolution-model that rests upon a unitary, rather than a federal system of government. Article 6(2) of the Constitution provides that:

“The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and co-operation.”

Many offices established by the Constitution are shared by the two levels of government, as is clear from the terms of the Fourth Schedule which makes a “distribution of functions between the national government and county governments”. Article 186(2), for instance, typifies the concurrence of operations, providing thus:

“A function or power that is conferred on more than one level of government is a function or power within the concurrent jurisdiction of each of those levels of government.”

I have taken note too that the Senate (which brings together County interests at the national level) and the National Assembly (a typical organ of national government) deal expressly with matters affecting county government; and that certain crucial governance functions at both the national and county level – such as finance, budget and planning, public service, land ownership and management, elections, administration of justice – dovetail into each other and operate in unity.

[40] There is, therefore, in reality, a close connectivity between the functioning of national government and county government: even though the amicus curiae Professor Ghaiurged that the term “county government” is not defined in the Constitution; and that the expression “county government” should not be too broadly interpreted. I consider that the expression “any matters touching on county government” should be so interpreted as to incorporate any national-level process bearing a significant impact on the conduct of county government. However, interpretation in this category is to be made cautiously, and on a case-by-case basis, so as to exclude matters such as fall outside this Court’s Advisory-Opinion jurisdiction.

[41] Now on the facts of the instant case, I would hold that election date is a question so central to county government, as to lie within the jurisdiction of this Court, in relation to the request for an Advisory Opinion. I am not, on this point, in agreement with counsel for 2nd Interested Party, that the request for an Advisory Opinion is beyond jurisdiction because no county government has as yet been set up, and so no party has locus to seek such an opinion...

[83] With the benefit of the submissions of learned counsel, and of the comparative assessments recorded herein, I am in a position to set out certain broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction.

(I) For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be

“a matter concerning county government. ”The question as to whether a matter is one “concerning county government”, will be determined by the Court on a case-by-case basis.

(ii) The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.

(iii) The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.

(iv) Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.”

7.6 For the Court to have jurisdiction, the Reference must fall within the four corners elucidated. This request is unaffected by the last two prescriptions, as it is untouched by proceedings from lower Courts. It was, however, argued on behalf of CREAW that since appeals of this issue of two-third gender principle are now before the Court of Appeal a decision on this Reference could render them nugatory. It is true that this courts’ decision binds the Court of Appeal, but it is for the Court of Appeal to make such a decision. I have no evidence that the pending appeals are on all issues raised in this Reference. In any event this court has held that it will decide matters that come to us on a case-by-case basis. We have also held we should not subvert the jurisdiction of the courts below. The Court of Appeal will take itsgolden chance to enrich the jurisprudence in this area. That objection therefore fails.The Attorney General is a Constitutional Office that is capable of seeking an Advisory Opinion. The only contention that remains is: is this a matter concerning county government?

7.7 Matters of who are people’s representatives in Parliament and the Senate are central to county governments. As pointed out by learned counsel for the IEBC, Mr. Norwojee, national governments even discuss the allocations of resources to county governments through procedures in Articles 110 and 111 of the Constitution. The constitution and validity of these two houses of Parliament therefore will affect their ability to deliver on these key obligations to county governments. The gender question is one that is quintessential to determining their validity.

7.8 The election of the President under Article 138 has been granted further grassroots significance by requiring county representation:

(2) ...

(4) A candidate shall be declared elected as President if the candidate receives—

(a) More than half of all the votes cast in the election; and

(b) At least twenty-five per cent of the votes cast in each of more than half of the counties.

7.9 Indeed, the role of the Senate in county governments is its existential purpose. Article 96 makes this clear:

96. (1) The Senate represents the counties, and serves to protect the interests of the counties and their governments.

(2) The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.

(3) The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.

(4) The Senate participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145.

7.10 There cannot be any doubt that 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 this honourable Court has jurisdiction to hear the Reference by the Attorney General and deliver an Advisory Opinion.

8 Interpretation of the Constitution

8.1 Interpreting the various Articles that are in issue here is the fundamental issue in this Reference. Learned Counsels before ushave suggested various methods of interpreting the Constitution that should be adopted by this Court. These methods have been used by various jurisdictions, including some prescriptions arising from Kenyan Courts, both under the repealed and current Constitutions. Fortunately, to interpret the Constitution we need not go further than its specific Articles that give usthe necessary guidance into its interpretation.

8.2 It is, therefore, necessary for the Court at this early opportunity to state that no prescriptions are necessary other than those that are within the Constitution itself. The Constitution is complete with its mode of its interpretation, and its various Articles achieve this collective purpose. It is in interpreting the constitution that our robust, patriotic, progressive and indigenous jurisprudence will be nurtured, grown to maturity, exported, and becomes a beacon to other progressive national, African, regional, and global jurisprudence. After all, Kenya correctly prides itself as having the most progressive constitution in the world with the most modern Bill of Rights. In my view this is the development of ?rich jurisprudencedecreed by Section 3 of the Supreme Court Act ?that respects Kenya’s history and traditions and facilitates its social, economic and political growth.?

8.3 Let me now look at the relevant Articles of the Constitution that lay critical guidelines to its collective interpretation. I start with Article 10:

(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them––

(a) applies or interprets this Constitution;

(b) enacts, applies or interprets any law; or

(c) makes or implements public policy decisions.

(2) The national values and principles of governance include––

(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;

(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized;

(c) good governance, integrity, transparency and accountability; and

(d) sustainable development.

8.4 Article 259 further expounds how these values are to be applied in the interpretation of the Constitution:

259. (1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;

(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

(c) permits the development of the law; and

(d) contributes to good governance.

(2) …

(3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking ...

8.5 The Constitution then narrows further to the particularly sensitive matter of the Bill of Rights, prescribing how these rights shall be applied in conformity to the general interpretation of the Constitution:

20. (1) The Bill of Rights applies to all law and binds all State organs and all persons.

(2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

(3) In applying a provision of the Bill of Rights, a court shall—

(a) develop the law to the extent that it does not give effect to a right or fundamental freedom; and

(b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom.

(4) In interpreting the Bill of Rights, a court, tribunal or other authority shall promote––

(a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and

(b) the spirit, purport and objects of the Bill of Rights.

8.6 The Supreme Court must and shall remain the exemplary custodian of the Constitution. It is from these articles that the Supreme Court finds its approach to the interpretation of the Constitution. The approach is to be purposive, promoting the dreams and aspirations of the Kenyan people, and yet not in such a manner as to stray from the letter of the Constitution. The obligation upon this Court to uphold this interpretation is provided for in Section 3 of the Supreme Court Act (Act No …of 2011):

3. The object of this Act is to make further provision with respect to the operation of the Supreme Court as a court of final judicial authority to, among other things —

(a) assert the supremacy of the Constitution and thesovereignty of the people of Kenya;

(b) provide authoritative and impartial interpretation of the Constitution;

(c) develop rich jurisprudence that respects Kenya\'s history and traditions and facilitates its social, economic and political growth;

(d) enable important constitutional and other legal matters, including matters relating to the transition from the former to the present constitutional dispensation, to be determined having due regard to the circumstances, history and cultures of the people of Kenya;

(e) improve access to justice; and

(f) provide for the administration of the Supreme Court and related matters.

8.7 The obligation of the Supreme Court is, therefore, to cultivate progressive indigenous jurisprudence in the momentous occasions that present themselves to the Court. By indigenous jurisprudence, I do not mean insular and inward looking. The values of the Kenyan Constitution are anything but. We need to learn from other countries and from scholars like the distinguished Counsel who submitted before us in this Court. My concern, when I emphasize ?indigenousis simply that we should grow our jurisprudence out of our own needs, without unthinking deference to that of our other jurisdictions and courts, however distinguished. This Court, and the Judiciary at large has, therefore, a great opportunity to develop a robust, indigenous, patriotic and progressive jurisprudence that will give our country direction in its democratic development.

8.8 In interpreting the Constitution and developing jurisprudence, the Court will always take a purposive interpretation of the Constitution as guided by the Constitution itself. An example of such purposive interpretation of the Constitution has been articulated by the Supreme Court of Canada in R v Big Drug Mart(1985). In paragraph 116 of the ruling, the Court states:

The proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect...to recall the Charter was not enacted in a vacuum, and must therefore... be placed in its proper linguistic, philosophic and historical contexts.

8.9 Furthermore, in Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC), Lord Wilberforce summarized the justification of this approach by stating that it was ?a generous interpretation... suitable to give individuals the full measure of the fundamental rights and freedoms referred to.?

8.10 I further agree with the cited case on S v Zuma(CCT5/94) (1995), where the Constitutional Court of South Africa agreed with these decisions and emphasized that in taking this approach, regard must be paid to the legal history, traditions and usages of the country concerned.

8.11 This background is, in my opinion, a sufficient statement on the approach to be taken in interpreting the Constitution, so as to breathe life into all its provisions. It is an approach that should be adopted in interpreting statutes and all decided cases that are to be followed, distinguished and for the purposes of the Supreme Court when it reverses itself.

9 Immediate and Progressive Realization

9.1 The Attorney General advances an argument that the word ?shallused in Article 81 (b) is not instructive on whether implementation of this obligation is immediate or progressive. He rightly states that the use of this word has been interpreted on a case-by-case basis in Kenyan courts and other jurisdictions. Article 260 of the Constitution does not see it as a word requiring interpretation. The broad approach I have given on how the provisions of the constitution are to be interpreted makes it abundantly clear that it is unwise to tie in the interpretation of this Article to a single word. It is this broad approach that is holistic that will help me determine whether either immediate or progressive realization of the right to the gender quota is envisioned.

9.2 Reading Articles 81 (b), 27 (4), 27 (8) leaves me with no ambiguities as to the purpose and direction of these provisions. The ambiguity arises as it has been argued by the Attorney General, when the provisions of these Articles are read against the content of the provisions of Articles 96, 97, 98 and 177 (1) (b).

The Attorney General described this situation as a conundrum, lacunae, inconsistency,and downright contradiction.This is definitely true if the interpretation of these provisions is a narrow one as opposed to the broad approach that is decreed by the constitution. It is true 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. It reflects contested terrains, vested interested that are sought to be harmonized, and a status quo to be mitigated. These features in our constitution should not surprise anybody, not the bench, or the bar or the academia. What cannot be denied, however, is we have a working formula, approach and guidelines to unravel these problems as we interpret the constitution. We owe that interpretative framework of its interpretation to the Constitution itself.In the case of the Supreme Court theSupreme Court Act reinforces this framework.

9.3 The favouriteand popular legal argument articulated by Counsel is that if the framers of the constitution intended the implementation of the two-thirds gender principle to be progressive, it would have been easy for them to so provide. This argument always needs serious scrutiny and interrogation because it is always advanced as if it is obvious that would invariably be the case. In this Reference it is reinforced by the quotation of other Articles in the constitution that clearly provide for progressive realization. In my view this argument cannot, in itself, be conclusive. Nor are the High Court authorities binding on this Court besides them also calling for further interrogation, harmonization and problematization. We need to look elsewhere to resolve this ?\'conundrum\'. In my view we need to look at the arguments around non-discrimination and national values as decreed by the constitution; that political and civil rights demand immediate realization; and a thorough treatment of the historical, social, economic, and political basis of the two-thirds gender principle as decreed by Section 3 of the Supreme Court Act. Before I do that I can quickly depose of the issue raised over the separation of powers.

10 Separation of Powers

10.1 Contrary to the position taken by NGEC, I find that 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). This Court\'s role is clearly defined in the Constitution. There isno evidence that this apex Court in exercising its constitutional mandate in this Reference has in any way entered the constitutionally preserved mandates of the Executive and Parliament.

10.2 Furthermore, I am equally persuaded of this Court\'s power to declare Parliament unconstitutionally constituted. It is this 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. I am similarly guided was the Egyptian Constitutional Court in Anwar SubhDarwish Mustafa v The Chairman of the Supreme Council of the Armed Forces, Supreme Constitutional Court Case No. 20/24. In this case, the Supreme Constitutional Court of Egypt declared Parliament unconstitutional in regard to its constitution of 1/3 of its seats, which were to be reserved for independent candidates. The Egyptian Parliament had introduced amendments purporting to introduce competition between political party candidates and independents for the reserved seats. This resulted in independents getting less than the constitutionally required 1/3 membership in Parliament. The Supreme Constitutional Court of Egypt declared that the election of this 1/3 of Parliament was unconstitutional, and directed that elections should be redone to comply with the Constitution. The Supreme Court of Egypt not only looked at the provisions of the Constitution Declaration, but also delved in the history and purpose of the provisions. The Court was persuaded that the framers of the constitution wanted a Parliament that had party members and independents to give Egypt collective intellect and diverse visions that the country needed in its democratic development.

10.3 I am persuaded to take a similar approach to this reference and find,as exemplary custodian of the Constitution that the Supreme Court of Kenya hasthe power donated it by the People of Kenya to do so. Parliament and Senate that do not reflect the twothirds gender principle shall be unconstitutional.

11 Discrimination, National Values and the Kenyan Context

11.1 From article 27, and from CEDAW, it is clear that disenfranchisement of the Kenyan women in the political arena is a form of discrimination. CEDAW applies through the operation of Article 2 (6) of the Constitution of Kenya, having been acceded to by Kenya on 9th March 1984. These provisions collectively call for the immediate removal of this discrimination through the empowerment of women representation in political office, with CEDAW calling for stop-gap measures to be put in place to reverse the negative effects on our society through the operation of this systemic discrimination.

11.2 The history of this disenfranchisement ashamedly started with the birth of this country. There was not a single female MP in the first legislature in 1963. These numbers have only been marginally improving: 4.1% female representation in Parliament in 1997, 8.1% in 2002 and 9.8% in 2007. This is despite the female population being the majority, albeit slightly, at 50.44%. This history must have in the minds of Kenyans, particularly women, when they voted for a new constitution through a referendum and celebrated its promulgation on August 27, 2010.

The Supreme Court Act decrees we take this history into account. In doing so I see very clear progressive realization of gender equity and equality, that was slow, but which was progressively consolidated. The two-thirds gender principle reflects this historical progression.

11.3 The Attorney General properly comparedwomen representation in Parliament to other East African countries that have adopted affirmative action programs for women representation in the legislature. According to the Attorney General\'s submission, Uganda adopted affirmative action procedures in its 1995 Constitution and women\'s representation now ranks at 35% in 2011, up from 18.1% in 1996. The United Republic of Tanzania adopted a distribution of seats through proportional representation of political parties through a Constitutional

Amendment in 1995- women\'s representation has risen in the Tanzanian Assembly from 17.5% in their 1995 elections to 36% in their 2010 elections. Rwanda has the world\'s most documented affirmative action program in its Constitution, has seen representation of women in its lower house (Chamber of Deputies) rise from 17.1% in 1994 to 56.3% in 2008, and representation in its upper house (Senate) now stands at 38.5% as at 2011. Rwanda is the only country in the world with a female majority in parliament. This comparison has no force of law in the instant Reference, but Imust observe that Kenya, as an anchor state in the Eastern and Horn of Africa would 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.

11.4 What is undeniable is Kenyan women have continuously and consistently struggled for their equity and equality in all spheres of life. There is a consistent historical thread of this agitation as documented by the publicationEd; Ruto, Kameri- Mbote&Muteshi-Strachan, Promises and Realities:

11.5 One point on the issue of discrimination that has not been taken up by any Counsel in this Reference is obvious from the provisions of Article 177 (1) (b). In deference to Mr. Mwenesi for CMD, he did argue that the Article in question is a clear proof of the submission for immediate realization of the two-thirds gender principle. In my opinion this puts to rest the argument of progressive realization of the principle. I see no reason a constitution that decrees non-discrimination would discriminate against women running for Parliament and the Senate. I see 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 constitution while their counterparts vying for Parliament and the Senate are discriminated against would result in that unconstitutional position. This article read with the provisions of Articles 27(4), 27 (8) and 81 (b) make it abundantly clear that the two-thirds gender principle has to be immediately realized.

11.6 I believe 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 marginalized. Such values would be subverted by an interpretation of the provisions that accepts progressive realization of this principle.

11.7 I am in agreement with Counsel for the Katiba Institute that the Constitution\'s view to equality, as one of the values provided under the constitution, in this case is not the traditional view of providing equality before the law. Equality here 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. For example, when after struggles for universal suffrage Kenyans succeeded in getting that right enshrined in the Bill of Rights of the 1963 constitution, nobody could be heard to argue that we revert back to the colonial pragmatic progressive realization of the right to vote!

11.8 The requirement that the electoral system shall comply with the principle under Article 81 (b) that not more than 2/3 of members of elective bodies are of the same gender also falls on key players in the electoral system. The key players in the electoral system in Kenya are the State, the IEBC and political parties. The role of political parties in the electoral system and the need for their regulation can be seen in different Articles in the Constitution, in particular Article 90 on Party Lists. Article 90 provides for regulations on how nominations for reserved seats in Parliament, and requires that these lists reflect gender equality and the ethnic diversity of Kenya. The IEBC is tasked with ensuring that the party lists comply with these rules.

11.9 Are political parties in their party lists affected by Article 81 (b)? In my considered view, they are. Parties are an integral part of the electoral system and their party lists must ensure that they comply with the 2/3 rule. Parties are the only vehicles through which candidates for parliamentary seats are established. If party lists do not contain any/insufficient female candidates, no/insufficient female candidates will be elected.As such, it is important for political parties to establish internal mechanisms through which to ensure that not more than 2/3 of the entire list comprises of one gender. The IEBC is mandated by dint of the same provision to ensure that these party lists comply with this provision.

11.10 There were powerful arguments raised by Counsel Thong’orifor CREAW on what is happening here and now in the implementation of the two-thirds gender principle. She argued that the state was, indeed, implementing the principle as a matter of clear policy. Both CIC and CMD argued persuasively that stakeholder convening and discussions on the two-thirds gender principle was always about implementation and not interpretation. There is evidence that this position is correct. At no time did the Attorney General controvert the positions argued by Counsel. There was no argument by Counsel that these activities have given the principle constitutional validity. If the argument had indeed, been made by Counsel I would have held that it was invalid.

11.11 I hold, therefore, in the words of the South African Constitutional Court in August v The Electoral CommissionCCT 8/99 that Parliament by its silence cannot deprive the women of this country the right to equal representation. I take judicial notice of Parliament having a short period before it is dissolved, but I do not see Parliament refusing to legislate in a matter like this that affects the majority of the voters in this country. I have 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 do so, any of the elected houses that violate this principle will be unconstitutional and the election of that house shall be null and void. Article 3 of the Constitution makes this clear:

3. (1) Every person has an obligation to respect, uphold and defend this Constitution.

(2) Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.

11.12 It is worthy of note that arguments by Counsel on progressive realization of the two-thirds principle implied that Parliament would be called upon to legislate. Mr. Mwenesi raised the issue of the implications of the timeline of 5 years for Parliament to legislate under the Fifth Schedule of the constitution. He argued that 5 years would expire in the midterm of the new Parliament. It is implied that Parliament would legislate. These scenarios suggest that the best option in my view, an option that avoids the unconstitutionality of the next Parliament, is to legislate here and now and secure the rights of women under the two-thirds gender principle.

It is my opinion, therefore, that the answer to the Attorney General’s first question is that the two-thirds gender principle be implemented during the General Election scheduled for March 04, 2013.

DATED and DELIVERED at NAIROBI this 11th Day of December,2012

CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT

I certify that this is a true copy of the original