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In the matter of the principle of gender representation in the National Assembly and the
Senate (Advisory Opinions Application 2 of 2012) [2012] KESC 5 (KLR) (Constitutional and
Human Rights) (11 December 2012) (Advisory Opinion) (with dissent - WM Mutunga, CJ & P)
In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012]eKLR
Neutral citation: [2012] KESC 5 (KLR)
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
CONSTITUTIONAL AND HUMAN RIGHTS
ADVISORY OPINIONS APPLICATION 2 OF 2012
WM MUTUNGA, CJ & P, PK TUNOI, JB OJWANG, SC WANJALA & NS NDUNGU, SCJJ
DECEMBER 11, 2012
IN THE MATTER OF AN APPLICATION FOR ADVISORY OPINION
UNDER ARTICLE 163 (6) OF THE CONSTITUTION OF KENYA
-AND-
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
-AND-
IN THE MATTER OF THE PRINCIPLE OF GENDER
REPRESENTATION IN THE NATIONAL ASSEMBLY AND THE SENATE
-AND-
IN THE MATTER OF THE ATTORNEY-GENERAL (ON
BEHALF OF THE GOVERNMENT) AS THE APPLICANT
Advisory opinion of the Supreme Court in the matter of the Principle of Gender Representation in
the National Assembly and the Senate.
Reported by Rose Wachuka & Samuel Ngure (Legal Researchers, Supreme Court of Kenya)
Constitutional Law - gender representation - interpretation of constitutional provisions on gender
representation - constitution providing that no more than two-thirds of the members of elective public bodies “shall”
be of the same gender - further provisions providing for the gender composition of the National Assembly, the Senate
and County Assemblies - whether the provisions were to be implemented immediately or progressively - whether the
implementation measures contemplated were to be implemented during the general election scheduled for March
2013 - meaning of “progressive implementation” - meaning of “shall” Constitution of Kenya, 2010 articles 27,
81, 97, 98, 177.
Constitutional Law - interpretation of the Constitution - principles of interpretation - interpretation ofthe
general principles ofthe Constitution - interpretation of the principles in determining the content, and scheme
of enforcement of safeguarded rights - interpretation of the provisions governing gender equality and gender
kenyalaw.org/caselaw/cases/view/85286/ 1
representation - interpretation of the provisions governing the filing of claims challenging a presidential election
- Constitution of Kenya, 2010 articles 81, 140.
Electoral Law - presidential election - jurisdiction of the Supreme Court - constitutional provision providing for
the filing ofa petition challenging the election of a president-elect in the Supreme Court - whether the Supreme
Court would have jurisdiction to hear a petition where an election has not resulted in a president-elect in the first
round - whether the jurisdiction extends to disputes arising in the run-up to the election or whether it could only be
exercised after the announcement of the election result - Constitution of Kenya, 2010 article 140.
Jurisdiction - Supreme Court - advisory opinion - jurisdiction of the Court to give an advisory opinion on the
application of the Attorney General - nature of the jurisdiction and the nature of matters that may be the subject
of a reference for an advisory opinion of the Court - Constitution of Kenya, 2010 article 163(6).
Jurisdiction - Supreme Court - presidential election - jurisdiction of the Court to hear and determine disputes
arising from a presidential election constitutional provision providing for the filing ofa petition challenging the
election of a president-elect in the Supreme Court - whether the Supreme Court would have jurisdiction to hear
a petition where an election has not resulted in a president-elect in the first round - Constitution of Kenya, 2010
article 140.
Words and Phrases - meaning of “shall” in the Constitution of Kenya article 81 - meaning of “progressive
implementation ” with respect to the enforcement of safeguarded constitutional rights and freedoms.
Brief facts
The Attorney General sought the advisory opinion of the Supreme Court on whether articles 81(b) as read
with articles 27(4), (6) and (8); 96; 97; 98; 177(1)(b); 116 and 125 of the Constitution of Kenya, 2010
required progressive realization of the enforcement of the one third gender rule or whether the same was to be
implemented during the general elections scheduled for March 4th, 2013.
The second issue was whether an unsuccessful candidate in the rst round of Presidential Election under article
135 of the Constitution or any other person was entitled to petition the Supreme Court to challenge the
outcome of the rst round of the said election under article 140 or any other provision of the Constitution
of Kenya, 2010.
Issues
i. Whether Article 81 (b) applies in respect of the very next general elections to be held on March 4th,
2013, or on the contrary, apply progressively over an extended period of time.
ii. Whether an unsuccessful candidate in the rst 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 rst round of the said election under Article 140 or any other provision of the Constitution.
Relevant provisions of the Law
Constitution of Kenya , 2010
Article 81(b)
“Not more than two-thirds of the members of elective public bodies shall be of the same gender.”
Article 140
“(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.”
Held
1. Only a truly deserving case will justify the Supreme 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 rst-instance Court litigation. 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.
2. An advisory opinion should, as contemplated by article 163(6) of the Constitution, seek to unravel a legal
uncertainty in such a manner as to promote the Rule of Law and the public interest. While rendering an
advisory opinion, the Court 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.
3. The gender composition of both the National Assembly and the Senate, if it could touch on the
constitutionality of these organs, was an issue bearing impact on county governments. The issues upon
which the advisory opinion was sought were therefore matters concerning county governments. The two
questions referred to the Court by the Attorney-General were of such a nature as to bring the reference
within the ambit of matters that qualify for the Court’s advisory opinion. The Attorney-General’s application
raised issues of great public importance and it sought to resolve certain uncertainties in the establishment of
permanent governance organs following an election which was complex, novel and the most important since
independence. The task of resolving the uncertainties lay with the Supreme Court by its advisory opinion
jurisdiction
4. “Progressive realization” connotes a phased-out attainment of an identied goal - human rights goal which
by its very nature, cannot be achieved on its own, unless rst, 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 armative action.
5. As a custodian of the integrity of the Constitution which was the country’s charter of governance, the
Supreme Court was inclined to interpret the same holistically, taking into account its declared principles,
and to ensure that other organs bearing the primary responsibility for eecting operations that crystallize
enforceable rights, are enabled to discharge their obligations, as a basis for sustaining the design and purpose
of the Constitution.
6. The Constitution of Kenya, 2010 fuses a highly legalistic and minimalist approach as regards safeguards and
public commitment with declarations of general principles and statements of policy. In such circumstances,
the Court was inclined in favor of an interpretation that contributes to the development of both the prescribed
norm and the declared principle or policy, taking care not to substitute one for the other. A norm of the
kind in question in this case 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
clarication of the content and elements of the norm.
7. 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; the mechanisms
provided for attainment of gender- equity; the nature of the right in question; 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);
the identity and character of the players who introduce the candidates for appointment or election and it
depends on the manner of presenting candidature for election or nomination.
8. 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.
9. Regarding the terms of article 81(b) of the Constitution that “not more than two-thirds of the members
of elective public bodies shall be of the same gender’, the word “shall” will translate to immediate command
only where the task in question is a cut and dried one, executed as it is without further molding 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 dierent 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. The word “shall” is an emphasis on the obligation to take appropriate action, in the course of the
progressive realization of a right conferred by the Constitution.
10. By examining article 81(b) in the context of articles 97 (on membership of the National Assembly) and 98
(on membership of the Senate), the conclusion is drawn 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.
11. If the measures contemplated to ensure its crystallization into an enforceable right are not taken before the
elections of March 4 then article 81(b) would not be applicable to the said elections. The eect 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.
12. Bearing in mind the terms of article 100 (on promotion of representation of marginalized groups) and
of the Fifth Schedule (prescribing time-frames for the enactment of required legislation), the Court was of
the majority opinion that legislative measures for giving eect 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.
13. There was a lacuna in article 140(1) of the Constitution, in that it made no provision regarding the
procedure to be followed where after a presidential election, there is no president-elect and 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).
14. There were 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 eect, a process set in a plurality of stages. A reading of article 87(2) alongside article
163(3) suggested that the Supreme Court was intended to adjudicate upon all such disputes as would arise
from the Presidential election. The Court found no reason to presume that the framers of the Constitution
intended that the Supreme Court should exercise original jurisdiction only in respect of a specic element,
namely, disputes arising after the election - while excluding those disputes which might arise during the conduct
of election.
15. The validity of the presidential election is not for determination only after the administrative
pronouncement of the nal result; at any stage in the critical steps of the electoral process, the Supreme Court
should entertain a dispute as to validity.
16. 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
the unanimous opinion of the Court, 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 rst 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 specic, and ecient time-lines
to guide the hearing of rst-round election disputes.
Dissenting opinion
Per Mutunga CJ, dissenting on the question of implementation of the two-thirds gender rule:
1. The Supreme Court must and shall remain the exemplary custodian of the Constitution. It is from the
Constitution itself that the Supreme Court nds 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 the Court to uphold this
interpretation is provided for in Section 3 of the Supreme Court Act.
2. It is the Supreme 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. The Supreme Court
therefore has the power to declare Parliament unconstitutionally constituted.
3. A Parliament and Senate that do not reect the two-thirds gender principle shall be unconstitutional.
4. From article 27 of the Constitution of Kenya, and from the Convention for the Elimination of all forms
of Discrimination Against Women (CEDAW), it was 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 March 9, 1984. These provisions collectively
call for the immediate removal of this discrimination through the empowerment of women representation in
political oce, with CEDAW calling for stop-gap measures to be put in place to reverse the negative eects on
our society through the operation of this systemic discrimination.
5. The immediate implementation of the two-thirds gender principle is reinforced by the 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.
6. 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 armative 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.
7. Political parties are an integral part of the electoral system and their party lists must ensure that they comply
with the two-thirds rule.
8. Parliament by its silence (in failing to take appropriate legislative action) cannot deprive the women of this
country. In the event that Parliament fails to do so, any of the elected houses that violates this principle will be
unconstitutional and the election of that house shall be null and void.
9. Therefore, the answer to the Attorney General’s rst question is that the two-thirds gender principle be
implemented during the General Election scheduled for March 4, 2013
10. Obiter per Mutunga CJ: “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 — indigenous is 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”
Citations
East Africa
1. Centre for Rights Awareness (CREAW) & 8 others v Attorney General & another Petition Nos 208 & 207
of 2012 (Consolidated) - (Mentioned)
2. Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General and another Petition No 102
of 2011 - (Explained)
3. In the Matter of the Independent Electoral and Boundaries Commission [2011] 2 KLR - (Explained)
4. Centre for Rights Awareness (CREAW) & 7 others v Attorney General [2011] 1 KLR - (Explained)
5. Kenya Section of the International Commission of Jurists v Attorney General & 2 others Criminal Appeal No
1 of 2012 - (Explained)
6. Olum v Attorney General of Uganda [2002] EA 508 - (Explained)
7. Otieno, Milka Adhiambo & another v Attorney General & another Petition No 33 of 2011 - (Mentioned)
8. Patel, Nishith Yogendra v Pascale Miraille Baksh & another Civil Application No 264 of 2007 - (Explained)
9. Republic v Minister for Health and the Medical Practitioners and Dentist Board, Ex Parte Avenue Health
Care Ltd Miscellaneous Application No 280 of 2007 - (Explained)
10. United States International University v Attorney General & another Petition No 170 of 2012 - (Explained)
Bermuda
1. Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 - (Explained)
Canada
1. R v Big Drug Mart [1985] 1 SCR 295 - (Explained)
Egypt
1. Anwar Subh Darwish Mustafa v Chairman of the Supreme Council of the Armed Forces Constitutional Court
Case No 20/24 - (Explained)
South Africa
1. August & another v Electoral Commission & others CCT 8/99 - (Explained)
2. S v Zuma [1995] ZACC 1; 1995 (2) SA 642 - (Explained)
Texts & Journals
1. Black, HC., (Ed) (1910) Black’s Law Dictionary St Paul Minnesota: West Publishing 2nd Edn
2. Ruto, SJ., et al (Eds) (2009) Promise and Realities: Taking Stock of the Third UN International Women’s
Conference Nairobi: ACTS Press
3. Stevenson, A., Soanes, C, (Eds) (2005) Concise Oxford English Dictionary London: Oxford University Press
Statutes
East Africa
1. Constitution of Kenya, 2010 articles 2(6); 10; 20; 22(3); 27(4), (6), (8) ; 38(1), (3); 43; 54(2); 81-92; 96; 97(1)
(b); 98; 100(a); 110; 111; 116; 125; 136; 137; 138(1), (4), (5); 140; 145; 163(3)(a), (6), (8); 165; 171(2); 177(1)
(b); 260 - (Interpreted)
2. Elections Act, 2011 (Act No 24 of 2011) In general - (Interpreted)
3. Supreme Court Act, 2011 (Act No 7 of 2011) section 3(c) -(Interpreted)
4. Supreme Court Rules, 2011 (Act No 7 Sub Leg) rules 23, 54 - (Interpreted)
5. Political Parties Act, 2011 (Act No 11 of 2011) In general - (Interpreted)
International Instruments & Covenants
1. Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), 1981 articles 3;
2. International Covenant on Civil and Political Rights (ICCPR), 1966 article 3
3. International Covenant on Economic, Social and Political Rights (ICESCR), 1966 articles 2;
4. Universal Declaration of Human Rights (UDHR), 1948
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 4th March, 2013?
B. Whether an unsuccessful candidate in the rst 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 rst 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 surage 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 eect to the realization of the rights guaranteed under this Article, the State shall
take legislative and other measures, including armative action programmes and policies
designed to redress any disadvantage suered 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 benets 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 adavit, 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
ocers, public ocers 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 specic 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 oce of
the President arising under
Article 140.
“That Article 140(1) provides that a person may le 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 rst 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
rst 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 rst round of
Presidential election. There is no express right to bring an election petition over a run-o.
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 dened 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 rst-instance-Court litigation. Only by due deference to
the assigned jurisdiction of the dierent 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 reected 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 aecting 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 rst 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 rst 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 eective 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 fullment 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 gure
of the national legislative bodies well beyond the prescriptions of the Constitution. So there would
be a conict 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 ocer, Mr. Amollo, takes a lone stand, as follows. In principle, the gender-
equity rule should be given immediate eect. 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 ve-year leeway
under the Fifth Schedule to the Constitution. He asks the Court to require
that the ve-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:
“ The 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 ve-year leeway for Parliament to comply, states a case based
on foreboding: that as the said ve-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 eect 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 specic
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 suering from the eects of alleged legislative tardiness should be regarded
as unconstitutional. Yet this, as we will later signal, is an issue of fateful signicance, 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 eect 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 oends 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 benet 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 rst full 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 justiable 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,
rstly, 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 dened 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 ratied by Kenya shall form part of the

law of Kenya under this Constitution.”
43 ICRG takes a dierent 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 rst 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 beneted 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-indierent 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 aairs 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 armative 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 identied the broad
concerns which it should bear in mind, in rendering an Advisory Opinion.
These are as follows:
(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
specic, 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 oends 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?
E. Progressive Realization Of A Right

49 The concept of “progressive realization” is not a legal term; it emanates from the word “progress,”
dened 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 identied
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 elds, in particular in political, social, economic and cultural
elds, 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 rst, 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 armative 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 dierent Constitutions shows that they are often written in dierent 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 aairs 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 clarication 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 armative-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 specied, and the mechanism of bringing them to oce clearly dened.
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 gure of
four? By Article 27 (8) of the Constitution, failing a purely providential attainment of the gure 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 reection 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 dierent 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 aorded 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 oce 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 specic 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.”
And the said clause (6) thus states:
“ To give full eect to the realization of the rights guaranteed under this Article, the State shall
take legislative and other measures, including armative action programmes and policies
designed to redress any disadvantage suered by individuals or groups because of past
discrimination.”
Since the task is expressed as “to give full eect”, 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 specied measures.”
Such unspecied 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 Oce; public participation in the legislative
process is a constitutional imperative.
66 Armative 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 eective inclusion of women in the elective and appointive public oces. 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 armative-action programmes. It is not the classication 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 dierent paths of enforcement for a
specic, 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 conned 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 specic normative prescriptions, and general statements of policy
and principle: the latter inspire the development of concrete norms for specic enforcement; the
former can support the principle maturing into a specic, enforceable right.
70 We consider that Article 81(b), which stands generally as a principle, would only transform into a
specic, 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 specic, 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 specic
provisions of Articles 97 and 98, not having ripened into a specic, 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 eect 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 eect 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 beneted 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 eect 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 identied 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 conict 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 armative action programmes and policies designed to redress any disadvantage suered
by individuals or groups,” presupposes open-ended schemes of decision-making and programming,
which can only be eected 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 oend 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 eecting operations that crystallize
enforceable rights, are enabled to discharge their obligations, as a basis for sustaining the design and
purpose of the Constitution.
83 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 rst 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 eected, 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 eect 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 le 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 nal election which will lead to the identication of the President-elect.
Article 140(1) provides for dispute settlement only at the nal 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 diering 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 oce of President, should be conned 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 rst 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 rst 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 rst 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 eect 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 rst 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 specied 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 rst round of the Presidential elections;
and that it is inapposite to adjudicate an election dispute at the nal stage when it preceded the run-
o 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 rst round of election is just as important as the second round.
Counsel urges that the validity of the run-o election can only be properly determined when the
Supreme Court has heard and determined any grievance relating to the rst 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 nality, and should insulate
petitions relating to such elections from the residual jurisdiction of the High Court.
93 As signalled in this Court’s rst 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 signicance; 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 conrmed
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?
96 Article 140(1) of the Constitution provides:
“ A person may le 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 rst round
of election – that a certain candidate has received more than half of all the votes cast in the rst 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-ve 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 rst 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 rst
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 eect, a process set in a plurality of
stages. Article 137 of the Constitution provides for “qualications and disqualications 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 led 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:
“ The Supreme Court shall have –
(a) exclusive original jurisdiction to hear and determine disputes relating to the
elections to the oce of President arising under Article 140……”
On a literal construction, it may be stated that the foregoing reference to “the elections to the oce
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 nd no reason to presume that the framers of the Constitution intended that the Supreme Court
should exercise original jurisdiction only in respect of a specic 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 rst round? For instance, regardless of
the fact that the return of the rst 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 nal 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 rst 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, rstly, 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 eciently-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 rst 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 specic, and ecient time-lines to guide the hearing of rst-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.
DISSENTING ADVISORY OPINION
1 Introduction
1. 1 The Attorney General led 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 rst 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 rst 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
2011eKLR 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 aected 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 ocio 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 ocio 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:
Article 81.
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 surage 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 oce 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 sucient 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 nancial 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 UGANDA2002 2 EA 508:
“ the entire Constitution has to be read as an integrated whole and no one 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.”
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 nd 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 armative 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 eect
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 armative 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
benet 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 specied or contemplated in clause (4).
(6) To give full eect to the realization of the rights guaranteed under this Article, the State
shall take legislative and other measures, including armative action programmes and
policies designed to redress any disadvantage suered by individuals or groups because
of past discrimination.
(7) Any measure taken under clause (6) shall adequately provide for any benets 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 fulll 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 justiable 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 eective date, is
not valid unless the legislation specically 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 specic 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
satised.
(4) ...
…
5.5 CMD argues that as the Attorney General is seeking to limit a right guaranteed under Article 27,
he must fulll the requirementsof Article 24, in that the limitation should be by legislation that
specically states its intention to limit such rights. It is CMD's contention that the Attorney General
has not fullled 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:
Article 4
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 dened 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 proer 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 fulll 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 eect 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:
Article 7
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 oce 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 rst 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 rst 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 ocer of the Court in
the administration of justice is to avail before the Court all relevant facts, including those that may be
against the ocer'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 ocer 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 identied 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 nd the conduct of the Counsel amounted to an abuse of court and argued:
“ Upon a careful reection, 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 adavit 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 adavit 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 conrmation,
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 oces 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, typies 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 aecting county government; and
that certain crucial governance functions at both the national and county level
– such as nance, 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 dened
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 signicant 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 benet 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 satised that it is in the public interest to do so, proceed and render
an Advisory Opinion.
SUBPARA (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 unaected 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 Oce 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 aect 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 signicance by
requiring county representation:
Article 138.
(1) ...
(2) ...
(3) ...
SUBPARA (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-ve 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 ocers by considering and
determining any resolution to remove the President or Deputy President from oce
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 specic 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:
Article 10.
(1) The national values and principles of governance in this Article bind all State organs, State
ocers, public ocers 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 eect to a right or fundamental
freedom; and
(b) adopt the interpretation that most favours the enforcement of a right or fundamental
freedom.
SUBPARA (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 nds 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 nal 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 denition 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 Aairs (Bermuda) v Fisher 1980 AC 319 (PC), Lord Wilberforce
summarized the justication 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 sucient 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 denitely 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 reects 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 nd 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 dened 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 nd,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 reect 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 oce, with CEDAW calling for stop-gap measures to be put in place to
reverse the negative eects 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 rst 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 reects this historical progression.
11.3 The Attorney General properly compared women representation in Parliament to other East African
countries that have adopted armative action programs for women representation in the legislature.
According to the Attorney General's submission, Uganda adopted armative 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 armative 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:
Taking Stock of the 3rd UN International Women’s Conference (Nairobi: ACTS Press, 2009) that
is consummated by the majority vote in the 2010 referendum and the subsequent promulgation of
the constitution on August 27, 2010. Arguing that the two-thirds gender rule requires progressive
realization ies into the face of this history of struggle by Kenyan women. Katiba Institute is denitely
right when it argues that the one-third is simply a minimum and that progressive realization must be
conned to developments that move the country towards a 50/50% threshold in gender equity and
equality.
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 armative 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 surage 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 dierent 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 reect
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 aected 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/insucient female candidates, no/insucient 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 aects 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 rst 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.
……………………………….….. …………………………………..
W.M. MUTUNGA P.K. TUNOI
CHIEF JUSTICE & PRESIDENT JUSTICE OF THE SUPREME COURT
OF THE SUPREME COURT
……………………………………… ……………………………………...
J.B. OJWANG S.C. WANJALA
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
……………………………………..
N.S. NDUNGU
JUSTICE OF THE SUPREME COURT
I certify that this is a true Copy of the original
Ag. REGISTRAR

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In the matter of the principle of gender representation in the National Assembly and the

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

B. Whether an unsuccessful candidate in the rst round of Presidential election

(a) applies or interprets this Constitution;

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

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

(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.

(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

B. Parties And Amici Curiae

“ The electoral system shall comply with the following principles –

30 The Attorney-General submitted that as a consequence of the uncertainty of language in the

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

(b) persons with disabilities;

(d) ethnic and other minorities; and

(e) marginalized communities.”

“ 1. Adoption by States Parties of temporary special measures aimed at accelerating

“ Any treaty or convention ratied by Kenya shall form part of the

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

(e) Suppose such a requirement is placed on a collective, programme-bound and life-time-

(g) Under what circumstances is the Constitution’s prescribed membership-quota amenable

E. Progressive Realization Of A Right

50 Article 3 of the ICCPR states that:

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

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

63 Relevant example is aorded by Article 7 of CEDAW, which thus states:

(b) To participate in the formation of government policy and the implementation

(c) To participate in non-governmental organizations and associations concerned

And the said clause (6) thus states:

G. Opinion On The Gender-equity Question

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

“ (1) The President shall be elected by registered voters in a national election

95 Several questions have emerged, which we must address:

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

96 Article 140(1) of the Constitution provides:

“ The Supreme Court shall have –

DISSENTING ADVISORY OPINION

1. 3 On this date, certain amiciCuriae addressed us on issues of jurisdiction.

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

3.2 Article 97 decrees as follows:

(1) The National Assembly consists of—

(c) Twelve members nominated by parliamentary political parties according to

3.3 Article 98 decrees as follows:

(1) The Senate consists of—

(e) The Speaker, who shall be an ex ocio member.

(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;

1. Adoption by States Parties of temporary special measures aimed at accelerating de facto

6 Issues for Determination

(39) On the question whether election date is a matter of “county government”,

“A function or power that is conferred on more than one level

(2) The Senate participates in the law-making function of Parliament by considering,

8 Interpretation of the Constitution

(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––

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

(d) sustainable development.

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

(a) promotes its purposes, values and principles;

(c) permits the development of the law; and

(d) contributes to good governance.

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

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

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

(e) improve access to justice; and

9 Immediate and Progressive Realization