Gender Rights and Wrongs: Critique of the Supreme Court Decision on the One Third Gender Principle
November 11, 2013
Ochiel J Dudley* Abstract
As a matter of consensus, the Constitution of Kenya is amongst the most liberal and progressive in the world.1 It has been hailed elsewhere as creating “a new country”, by requiring the Judiciary and broader Kenyan society to transform2.
Nevertheless, how much and long, the “living tree”3 of the constitution will bear fruit is another matter. As a result, to promote gender equity, the Constitution must be interpreted broadly according to the living tree doctrine.4 Briefly stated, “The spirit and tenor of the Constitution must, therefore preside and permeate the process of judicial interpretation and judicial discretion.”5
To that end, the Supreme Court was presented with a novel opportunity to advance gender equity in the Matter of the Principle of Gender Representation in the National Assembly and the Senate6.
In that case, the Attorney-General moved the Supreme Court for an advisory opinion on two questions, the relevant one for this paper being:
“…whether Article 81(b) as read with other provisions of the Constitution required a progressive realization of the one-third gender rule, or the same to be implemented (immediately) during the general elections of 4th March, 2013”7
The Attorney-General (though he had appeared to seek the Supreme Court’s advisory opinion) argued that it was not clear whether the two-thirds-one-third gender-equity rule in the national legislative agencies was to be implemented immediately or progressively.
He submitted that as a consequence of the uncertainty of language in the Constitution’s gender-equity clauses, there was only one certainty: that, by Article 97(1)(b), the mandatory number of persons of the female gender who are to form part of the National Assembly’s membership is 13.4 percent.
Thus, if the electorate should fail to elect women in numbers satisfying the gender-equity rule, he submitted, 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 conflicts in fundamental principles, the Attorney-General further 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 of the Constitution that supports a progressive realization of the gender-equity principle in elective representation, for the central legislative agencies.
The Advisory opinion presented the highest Court in the land, with a novel chance to strike a decisive blow in favour of gender equity. Instead, the Court by a majority vote (and Mutunga CJ dissenting), held “that there was no mandatory obligation resting upon the State to take particular measures, at a particular time, for the realization of the gender-equity principle8”.
One cannot begin to appreciate the significance of the pro-gender equity provisions, the wisdom of affirmative action, or the significance of the One Third Gender Principle decision until they acquire a preliminary understanding of Kenya’s “very interesting constitutional history”9.
Prior to the promulgation of the Constitution of Kenya, 2010, and “… from independence Kenyans never owned the process of writing their constitution”10. Ultimately, the expedition for a home-grown constitution involved, in part, a search for greater gender equity.
As a matter of fact, the Committee of Experts on Constitutional Review (CoE)11 stayed alive to this fact and recalled in its Final Report that under section 4 of the Constitution of Kenya Review Act:
“…the object of the review process was to obtain a constitution with provisions establishing a free and democratic system of government that guarantees good governance, constitutionalism, rule of law, human rights, gender equity, gender equality and affirmative action12” (emphasis supplied).
As a result the Constitution of Kenya, 2010 has a plethora of provisions on gender equity, some of which formed the basis of the advisory opinion13.
The Place of the Supreme Court in Constitutional Interpretation
To begin with, the most essential realm in the separation of powers doctrine is the role of an independent judiciary as guarantor of the rule of law. This duty and jurisdiction of the Judiciary is memorably etched in the words of Marshall J in Marbury v Madison14 – “It is, emphatically, the province and duty of the judicial department to say what the law is”.
In the Kenyan judicial system, finality of authority on the interpretation of constitution rests with the Supreme Court15. Indeed all courts are bound by the decisions of the Supreme Court16. In this scheme of things, M’Inoti JA elaborately paints the place of the Supreme Court in constitutional interpretation
“…Above all, the Constitution has created an extra level of Court in the form of the Supreme Court at the apex; to which appeals on the interpretation of the Constitution lie as of right…(emphasis supplied)17”.
Added to this, the Supreme Court also has the sole jurisdiction to give an advisory opinion on any matter concerning county government, at the request of the national government, State organ, or county governments18.
Further, under the Supreme Court Act, 201119, the Supreme Court is additionally established-
“… as a Court of final judicial authority to, among other things —
(a) assert the supremacy of the Constitution and the sovereignty 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” (emphasis supplied)
Philosophy of Constitutional Interpretation
So what philosophy should inform or should have informed the interpretation of the cited Articles? Muthomi Thiankolu recalls that,
“The issue of the proper approach to constitutional interpretation has haunted Kenyan courts for as long as we have been independent … the courts adopted an unprincipled, eclectic, vague, pedantic, inconsistent15 and conservative approach to constitutional interpretation”20
It is important to start at the beginning. The Constitution itself is self-contained as to its mode of interpretation:
“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.”
Besides, it is now well established that: “A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a Court of law21”.
Consequently, in interpreting the Constitution, the letter and the spirit of the Supreme law ought to be respected. To reach a proper interpretation, various parts of the Constitution ought to have been as an integrated whole and no one particular provision destroying the other but each sustaining the other.22 This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramouncy of the written constitution23”.
A similar principle is enunciated in the United States Supreme Court case of South Dakota v North Carolina24 where Brewer J said that:
“… I take it to be an elementary rule of constitutional construction that… all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument…25”.
One great purpose of the various Articles of the Constitution cited above was to attain gender equality in representation. Therefore, the majority ought to have realized that it effectively neutered the positive prohibitions against gender inequity by holding that there was no mandatory obligation resting upon the State to take particular measures, at a particular time, for the realization of the gender-equity principle.
Also, the decision effectively means that women who decide to vie for county representation are assured of gender equity while those who, aspire for higher things and, vie for representation in Parliament are not. Could it have been the purpose of the framers of the constitution to discriminate against women inter se? Is this absurdity not the result of a strict and pedantic interpretation of the Constitution?
International Human Rights Law
Besides the majority decision is also fatally flawed because it runs contrary to international human rights law. The Constitution of Kenya, 2010 incorporates human rights treaties by reference:
“Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”26
To begin with, Kenya has adopted the Universal Declaration of Human Rights (UDHR) which guarantees the full range of rights – civil, political, economic, social and cultural. Additionally, Kenya has ratified the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), the African Charter on Human and People’s rights (ACHPR), as well as the Protocol to the African Charter on Human Rights on the Rights of Women in Africa- Maputo Protocol.
All these treaties have significant provisions sufficient to cover the subject of discrimination. In particular, the CEDAW in Article 2(a) requires that states “undertake . . . to embody the principle of the equality of men and women in their national constitutions or other appropriate legislation . . . and to ensure, through law and other appropriate means, the practical realizations of this principle.”
But more importantly, Kenya has in addition, ratified the International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR). The former Covenant entails a comprehensive mix of civil and political rights which Kenya has agreed to “respect and to ensure”.
Article 3 of both the ICCPR and the ICESCR obligates states “to ensure the equal rights of men and women to the enjoyment of all . . . rights” under the treaty. However, the difference between the obligations arising from the two latter Covenants can be gleaned from the general provisions regarding obligations under Article 2(1) of each Covenant.
Whereas the ICCPR27 imposes the obligation “to protect and respect” the corresponding Article 2(1) in the ICESCR is the one where state parties “undertake to take steps” with a view to progressively achieving the rights recognized28. As a matter of fact, this difference in terminology is significant as the wording of each covenant reflects the perceived difference in nature of obligations arising from the two clusters of right29.
While civil and political rights must be immediately realized, economic, social, and cultural rights, may be assessed by the progressive realization standard30. The drafters of the Constitution of Kenya, 2010 were alive to this fact and the document explicitly recognizes the application of the progressive standard to economic, social and cultural rights. As a result, Article 21(2) provides that:
“The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43.”31
On the other hand, it has been established that the obligations imposed by the ICCPR are of immediate nature and states cannot invoke a lack of resource to justify failure to protect the rights. General Comment 31 is to the effect that:
“The requirement … to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to social, cultural or economic considerations within the State.”32
Additionally, the Third Committee of the General Assembly that finalized the drafting process of the treaty agreed that the notion of progressiveness should not be incorporated into the ICCPR. They firmly held that, unlike economic, social and cultural rights, the enjoyment of civil and political rights could not be delayed33. One cannot therefore understand why the majority opted to incorporate the concept of “progressiveness” into the gender representation question.
Though Article 27 of the Constitution engenders nondiscrimination, it raises implementation obligations of two kinds – civil and political rights (immediately realized) and economic, cultural, and social rights (progressively realized):
“… women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres (emphasis supplied)”34
Perhaps the right thing for the majority to do would have been to discern the different implementation obligations imposed by Article 27. It has been said that, “One way to enhance compliance with the (ICESCR) is to disaggregate the obligations into those that are progressively realized and those that are immediately realized”35.
But supposing, for argument’s sake only, that the majority was right in importing the progressiveness standard the ICCPR, its final decision would be still be erroneous. The reason is the concept of progressive realization imposes an obligation to move as expeditiously and effectively as possible towards the rights in question36.
Accordingly, while the full realization of the rights may be achieved progressively, steps toward that goal must be taken within a reasonably short time after the Covenant’s entry into force37. Such steps must be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant38.
There is no evidence that the majority interrogated the State to find out what steps it had taken 2 years after the promulgation of the Constitution, to secure gender representation rights. One could therefore say it was derelict of the Supreme Court, having erroneously found for progressive realization, to fail to query the State, to find out what specific benchmarks it had been established, and whether the state had met those benchmarks.
The gist of the matter is that the majority’s bold finding that “there was no mandatory obligation resting upon the State to take particular measures, at a particular time, for the realization of the gender-equity principle39” is a fallacy without basis in law.
The approach by the Court’s majority leans towards the school of thought that regards some human rights, including gender representation as a mere unenforceable principle of state policy40. The approach is defeatist and runs contrary to the principle that all human rights and fundamental freedoms are indivisible and interdependent41.
The Constitution of Kenya 2010 is incompatible with the school of thought that considers human rights as mere aspirational goals rather than enforceable rights. Either the Constitution is nothing at all or it is a living document with specific and agreed obligations on human rights including gender representation.
Moreover, the majority’s decision is painted in especially bad light when it is juxtaposed with two decisions from the High Court. The right to housing is, by consensus, amenable to progressive realization42. The High Court however has found the courage to say:
“…the argument that social economic rights cannot be claimed at this point, two years after the promulgation of the Constitution also ignores the fact that no provision of the Constitution is intended to wait until the State feels it is ready to meet constitutional obligations. Article 21 and 43 require that there should be ‘progressive realization’ of social economic rights implying that the State must begin to take steps, and I might add, be seen to take steps towards realization of these rights (emphasis supplied)43.”
And on a different occasion it said:
“…three years after the promulgation of the Constitution the right to adequate housing cannot be aspirational and merely speculative (emphasis supplied)44.
On this latter occasion, the Court ordered the Attorney General to must move with speed and establish policies and guidelines to ensure that this right is progressively realised. The Attorney General was directed to file an affidavit within 90 days “detailing out existing or planned State Policies and Legal Framework on Forced Evictions” and “measures towards the realisation of the right to accessible and adequate housing and to reasonable sanitation”. The position taken by the High Court in these two decisions is correct and supported by international human rights law as discussed in the preceding part.
Doing the Undoable: Comparative Jurisprudence
In its decision, the majority arrived at what it itself described as the “ultimate question”45. That is “whether the relevant organs would in their membership be held to offend the Constitution, if the general elections of March 2013 did not yield the stated gender proportions”46. The answer to that question should be a simple “yes” if Article 2 of the Constitution is to have any meaning47.
Surprisingly, instead of finding that an inequitable parliament would be unconstitutional, the majority opted for the easier route and introduced a strange element into the equation; the need 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”48.
Obviously, this shows the majority was motivated more by the desire to preserve the life of Parliament, than to enforce the one third gender principle. Perhaps the majority failed to consider that “…there is nothing like supremacy of Parliament outside the Constitution. There is only supremacy of the Constitution49”. Perhaps the majority apprehended the political question of the effect of declaring parliament unconstitutional. But the majority would not have been treading a lonely path!
The Egyptian Parliament has once had to pay the price of interfering with reserved seats, in the case of Anwar SubhDarwish Mustafa v The Chairman of the Supreme Council of the Armed Forces50 In this case, the Supreme Constitutional Court of Egypt declared Parliament unconstitutional in regard to its constitution of one third of its seats, which were to be reserved for independent candidates. This resulted in independents getting less than the constitutionally required one third membership in Parliament. The Supreme Constitutional Court of Egypt declared that the election of this one third 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. The majority failed to make that inquiry.
It has been said that Courts, in adjudicating Constitutional cases, inevitably face “political issues” requiring a choice between competing values and desires51. Perhaps this was one instance of that conflict, and one that was decided in disfavor of women. Indeed a purposive interpretation would have required the Court to ascertain the meaning of Article 81(b) by an analysis of the purpose of the guarantee. The Court should have sought to interpret the provision in light of the gender interest it was meant to protect.
The purposive interpretation required the majority to recall the constitution was not enacted in a vacuum, and must therefore be placed in its proper linguistic, philosophic and historical context.52” Additionally, in taking this approach, the majority ought to have had regard to the legal history, traditions and usages of Kenya53.
Essentially, the majority ought to have considered that disenfranchisement of the Kenyan women in the political field is a form of discrimination going back to independence. This is a pedantic, and not purposive interpretation whose result has permitted the State by its inaction and “Parliament by its silence”54 to deprive the women of this country of the right to equal representation.
*Advocate of the High Court of Kenya – LLB UoN, Dip KSL, NITA; Currently Legal Researcher, Laws of Kenya Department, Kenya Law – www.kenyalaw.org; Views in this discourse are the author’s and do not reflect Kenya Law’s position on the matters discussed.
This article was initially presented at a “Colloquium on Women and the Kenya Constitution 2010: Opportunities and Challenges”organized by the University of Nairobi’s Centre for African Women Studies and the School of Law on 17th and 18th October, 2013 http://www.uonbi.ac.ke/node/4778
1 K M Georgiadis, “The Emerging Jurisprudence on The Right of Access To Information In Kenya”, Kenya Law Reports website http://www.kenyalaw.org/klr/index.php?id=1150 last accessed on 19th April, 2013.
2 W Mutunga CJ (2012), Key Note Speech By The Chief Justice, Hon Dr Willy Mutunga At the Commencement of the “Judicial Marches Week” Countrywide on August 21, 2012. KLR Bench Bulletin, Issue 20 July-December 2012.
3 For the origins of this constitutional metaphor, See Edwards v Attorney-General for Canada – (the Persons Case)  AC 124. See also V. C. Jackson (2006), Constitutions as “Living Trees”? Comparative Constitutional Law and Interpretive Metaphors, 75 Fordham Law Review, 921-960
4 Re The Matter of the Interim Independent Electoral Commission  eKLR
5 Dicta of Mahomed AJ in S v Acheson 1991 (2) S.A. 805; cited by the Supreme Court of Kenya in Re Interim Independent Electoral Commission (supra)
6  eKLR
7 Ibid at para 46
9 See Kituo Cha Katiba : The East African Centre for Constitutional Development (2012), Report of a Fact-Finding Mission of the Kituo Cha Katiba on the Progress of the Constitutional Review Exercise In Kenya, at pp 11 last accessed on 4th June, 2013 from http://www.kituochakatiba.org/index2.php?option=com_docman&task=doc_view&gid=358&Itemid=36. Quoted by G Maingi The Kenyan Constitutional Reform Process: A Case Study on the Work of FIDA Kenya in Securing Women’s Rights, 15 Feminist Africa, pp 64
10 K Kindiki, The Emerging Jurisprudence on Kenya’s Constitutional Review Law, 2007, 1 Kenya Law Review, at pp 153.
11 Established under Section 8 of the Constitution of Kenya Review Act, Cap 3A. The Committee of Experts delivered the Draft Harmonized Constitution that was passed at the National Referendum held on 4th August, 2010 and promulgated on 27th August, 2010 – the Constitution of Kenya, 2010.
12 Committee of Experts on Constitutional Review (2010), Final Report of the Committee of Experts on Constitutional Review, 11th October, 2010, at pp 23
13 See for instance Article 27; Article 81; Article 96; Article 97(1); Article 98; and Article 177
14 (1803) 1 Cranch 137 at 177; 5 US 87 at 111
15 Article 163(4)(a)
16 Article 163(7)
17 Equity Bank Limited v West Link MBO Limited  eKLR
19 Section 3
20 In Landmarks for El Mann to the Saitoti Ruling; Searching a Philosophy of Constitutional Interpretation in Kenya, Kenya Law Review  1:188, at 189
21 Minister for Home Affairs v Fischer  3 All ER 21
22 See John Harun Mwau & Others v AG  eKLR; Centre for Rights Education and Awareness (CREAW) and Others v AG eKLR;SeealsotheJudgmentofKoomeJA,intheCourtofAppealdecisionintheconsolidatedappealfromthetwocasesinCenterforRightsEducationandAwareness&2othersvJohnHarunMwau&6
23 Tinyefuza v Attorney General  UGCC 3
24 192 U.S. 286 (1904)
26 Article 2(6)
28 Sepúlveda, Magdalena. The Nature of the Obligations under the International Covenant on Economic Social and Cultural Rights. Antwerp: Intersentia Uitgevers N.V., (2003) at 119; See also Alston, Philip and Gerard Quinn, “The Nature and Scope of State Parties’ Obligations Under the International Covenant on Economic, Social and Cultural Rights,” Human Rights Quarterly, 9 (1987).
29 See also Seibert-Fohr, Domestic Implementation of the International Covenant on Civil and Political Rights, Max Planck Yearbook of United Nations Law, Volume 5, 2001, 399-472.
30 Shaura E., New Strategies for Progressive Realization Realization Assessment of Economic, Social and Cultural Rights:Cambodian AIDS-Related Orphans and Vulnerable Children as the Hard Case, Fordham International Law Journal, Volume 32: 2008, at 1657-1670
31 “43. Economic and social rights
(1)Every person has the right—
(a)to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
(b)to accessible and adequate housing, and to reasonable standards of sanitation;
(c)to be free from hunger, and to have adequate food of acceptable quality;
(d)to clean and safe water in adequate quantities; (e)to social security; and(f)to education.(2)A person shall not be denied emergency medical treatment.
(3)The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.”
32 See Human Rights Committee, International Covenant on Civil and Political Rights, General Comment 31: Nature of the General Legal Obligation on States Parties to the Covenant (2004) at para 14.
33 Seibert-Fohr ibid at 408
35 Sital Kalantry, Jocelyn E. Getgen, & Steven A. Koh, Enhancing Enforcement of Economic Social, and Cultural Rights Using Indicators: A Focus On The Right To Education In The ICESCR, 32 Hum. Rts. Q. 254, 257
36 General Comment Number 3, The Nature of States Parties Obligations (Art. 2, Para. 1 of the Covenant), adopted by the UN Committee on Economic, Social and Cultural Rights at its fifth session, 1990, UN Doc. HRI/Gen/1/Rev.3, 15 August 1997, page 61-62.
39 In Re Principle of Gender Representation
40 See NakutaJ, Thejusticiability of social, economic and cultural rights in Namibia and the role of the non-governmental organisations, lastaccessed on 28thOctober, 2013 from http://www.kas.de/upload/auslandshomepages/namibia/HumanRights/nakuta.pdf
42 See Articles 21 and 43, Constitution of Kenya, 2010,
43 Mitubell Welfare Society v AG  eKLR
44 Satrose Ayuma v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme  eKLR
45 In Re Principle of Gender Representation ibid at 83
47 “2. Supremacy of this Constitution
(1)This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
(2)No person may claim or exercise State authority except as authorised under this Constitution.
(4)Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
48 Ibid note at 45
49 Trusted Society of Human Rights Alliance v Attorney General & 2 others,  eKLR, at Para 71,
50 Supreme Constitutional did Court Case No. 20/24
51 E Z Ongoya (2008), The Law, the Procedures and the Trends in Jurisprudence on Constitutional and Fundamental Rights Litigation in Kenya, 2 Kenya Law Review 2008-2009
52 R v Big Drug Mart  1 S.C.R. 295
53 S v Zuma  ZACC
54 August v Electoral Commission  ZACC 3