On April 20, the High Court issued yet another judgment on the apparently never-ending controversy on the two-thirds gender rule.
This time, the question facing Justice Chacha Mwita was different from that Justice John Mativo had ruled on earlier in the month. The new case brought by Katiba Institute raised the question whether the Constitution requires political parties to ensure that the list of prospective candidates they provide to the Independent Elections and Boundaries Commission for parliamentary positions during the general election meets the two-thirds gender requirement.
In contrast, the case decided by Justice Mativo had asked the court to find that Parliament had failed to enact the law required by the Constitution on two-thirds gender composition and that Parliament should, therefore, be dissolved. In that case, Justice Mativo ordered Parliament to pass the law within 60 days failing which anyone may approach the Chief Justice and seek an order that the President dissolve Parliament.
But this article is about Justice Mwita’s decision about political parties’ obligation to comply with the two-thirds rule when conducting their nominations for parliamentary candidates. By Parliament here, we mean both Houses. We are talking about the 290 National Assembly constituency seats and the 47 seats in the Senate.

HOW DID THIS CASE COME ABOUT?
The case starts with Article 27 of the Constitution, which contains five critical elements that speak to equality.
First, it states that every person is equal before the law and should enjoy equal protection and benefit of the law.
Second, it provides that men and women have the right to be treated equally, including being accorded equal opportunities in political, economic, cultural and social spheres.
Third, the Article prohibits any form of discrimination based on any ground, including gender. Fourth, it requires affirmative action for groups (again including women) which have suffered because of historical discrimination.
Finally — and this is where we get the two-thirds rule and where we can clearly draw a distinction between Justices Mativo and Mwita’s judgments — it states that the state must take legislative and “other measures” to ensure that appointive and elective bodies do not contain more than two-thirds of persons of the same gender. The case decided by Justice Mativo only dealt with the question of “legislative measures”.
That of Justice Mwita looked at whether political parties must take “other measures” to ensure that lists of candidates presented by them for parliamentary seats are two-thirds gender compliant.
While Article 27 is the constitutional starting point of the case, the litigation history started with a letter. On December 15, 2016, Katiba Institute wrote to the IEBC under Article 35 of the Constitution on freedom of information and the recently passed Access to Information Act asking whether the electoral commission will impose a requirement that political parties provide two-thirds gender compliant lists for elective parliamentary positions in the 2017 general election.
It further asked the IEBC whether it would impose sanctions on political parties that did not provide lists of prospective candidates that were two-thirds gender compliant. The sanction Katiba Institute intimated to the IEBC was the rejection of any political party lists that were not two-thirds gender compliant.
The motivation of Katiba Institute in writing the letter was simple.
First, the IEBC is the only body given power by the Constitution to regulate elections, including political parties’ nomination processes and to ensure that any electoral process, is constitutionally compliant.
Second, and perhaps more importantly, Katiba was of the view that political parties play a critical role in determining who becomes an MP. In most cases — as the current nomination season demonstrates — in certain regions those chosen by political parties are a shoo-in to Parliament.
It was, therefore, foolhardy to foam at the mouth agitating for more women in Parliament in order to comply with the two-thirds constitutional rule but not agitating for political parties to make efforts towards that goal.
Finally, Katiba noted with significant concern, that legislative formulas being proposed on how to achieve the two-thirds rule focussed on a top-up approach: Meaning that, after the constituency results were declared, as many additional women as needed to meet the two-thirds requirement would be brought into Parliament through party lists — in the same way as women are now brought into county assemblies.
This would not only bloat Parliament, but would likely do little to empower women, instead stigmatising those “extra” women who would face similar problems to those in the county assemblies and Senate who are called names like “Bonga points”. Getting political parties to put forward more women for winnable seats would reduce the numbers of women needed after the elections if this top-up approach were adopted. And it would move us towards a situation in which no such special measures were required.

TAKING IEBC TO COURT
The IEBC did not respond to Katiba’s request for information within the law’s 21 day limit. On January 25, Katiba sued the IEBC complaining that it had refused to provide the information.
As a result, Katiba was apprehensive that the IEBC did not intend to require political parties to present nomination lists that were two-thirds gender compliant. Katiba asked the court to find also that, even in the absence of legislation, the Constitution still required the IEBC demand that lists of candidates presented by political parties be two-thirds gender compliant.

INSPIRING REASONS FROM THE COURT
Justice Mwita heard the case on April 5, and 15 days later issued a judgment that demonstrates the reach of our Constitution on issues of equality and non-discrimination.
He held that the political parties, and by extension the state, are required by the Constitution, whether or not there is legislation, to ensure appointive and elective processes are two-thirds gender compliant. But he put it much more colourfully: “ The Women of Kenya are no lesser beings and it should not be that any time women demand rights granted to them by the Constitution, the readily available answer is that there is no enabling legislation.”
He noted that, under the Political Parties Act, one of the objectives of funding parties from state resources was to promote equality and eradicate gender discrimination, yet parties had failed to take any measures to ensure that women had real opportunities to be nominated as candidates for parliamentary and other elective positions.

On April 20, the High Court issued yet another judgment on the apparently never-ending controversy on the two-thirds gender rule.

This time, the question facing Justice Chacha Mwita was different from that Justice John Mativo had ruled on earlier in the month. The new case brought by Katiba Institute raised the question whether the Constitution requires political parties to ensure that the list of prospective candidates they provide to the Independent Elections and Boundaries Commission for parliamentary positions during the general election meets the two-thirds gender requirement.

In contrast, the case decided by Justice Mativo had asked the court to find that Parliament had failed to enact the law required by the Constitution on two-thirds gender composition and that Parliament should, therefore, be dissolved. In that case, Justice Mativo ordered Parliament to pass the law within 60 days failing which anyone may approach the Chief Justice and seek an order that the President dissolve Parliament.

But this article is about Justice Mwita’s decision about political parties’ obligation to comply with the two-thirds rule when conducting their nominations for parliamentary candidates. By Parliament here, we mean both Houses. We are talking about the 290 National Assembly constituency seats and the 47 seats in the Senate.

HOW DID THIS CASE COME ABOUT?

The case starts with Article 27 of the Constitution, which contains five critical elements that speak to equality.

First, it states that every person is equal before the law and should enjoy equal protection and benefit of the law.

Second, it provides that men and women have the right to be treated equally, including being accorded equal opportunities in political, economic, cultural and social spheres.

Third, the Article prohibits any form of discrimination based on any ground, including gender. Fourth, it requires affirmative action for groups (again including women) which have suffered because of historical discrimination.

Finally — and this is where we get the two-thirds rule and where we can clearly draw a distinction between Justices Mativo and Mwita’s judgments — it states that the state must take legislative and “other measures” to ensure that appointive and elective bodies do not contain more than two-thirds of persons of the same gender. The case decided by Justice Mativo only dealt with the question of “legislative measures”.

That of Justice Mwita looked at whether political parties must take “other measures” to ensure that lists of candidates presented by them for parliamentary seats are two-thirds gender compliant.

While Article 27 is the constitutional starting point of the case, the litigation history started with a letter. On December 15, 2016, Katiba Institute wrote to the IEBC under Article 35 of the Constitution on freedom of information and the recently passed Access to Information Act asking whether the electoral commission will impose a requirement that political parties provide two-thirds gender compliant lists for elective parliamentary positions in the 2017 general election.

It further asked the IEBC whether it would impose sanctions on political parties that did not provide lists of prospective candidates that were two-thirds gender compliant. The sanction Katiba Institute intimated to the IEBC was the rejection of any political party lists that were not two-thirds gender compliant.

The motivation of Katiba Institute in writing the letter was simple.

First, the IEBC is the only body given power by the Constitution to regulate elections, including political parties’ nomination processes and to ensure that any electoral process, is constitutionally compliant.

Second, and perhaps more importantly, Katiba was of the view that political parties play a critical role in determining who becomes an MP. In most cases — as the current nomination season demonstrates — in certain regions those chosen by political parties are a shoo-in to Parliament.

It was, therefore, foolhardy to foam at the mouth agitating for more women in Parliament in order to comply with the two-thirds constitutional rule but not agitating for political parties to make efforts towards that goal.

Finally, Katiba noted with significant concern, that legislative formulas being proposed on how to achieve the two-thirds rule focussed on a top-up approach: Meaning that, after the constituency results were declared, as many additional women as needed to meet the two-thirds requirement would be brought into Parliament through party lists — in the same way as women are now brought into county assemblies.

This would not only bloat Parliament, but would likely do little to empower women, instead stigmatising those “extra” women who would face similar problems to those in the county assemblies and Senate who are called names like “Bonga points”. Getting political parties to put forward more women for winnable seats would reduce the numbers of women needed after the elections if this top-up approach were adopted. And it would move us towards a situation in which no such special measures were required.

TAKING IEBC TO COURT

The IEBC did not respond to Katiba’s request for information within the law’s 21 day limit. On January 25, Katiba sued the IEBC complaining that it had refused to provide the information.

As a result, Katiba was apprehensive that the IEBC did not intend to require political parties to present nomination lists that were two-thirds gender compliant. Katiba asked the court to find also that, even in the absence of legislation, the Constitution still required the IEBC demand that lists of candidates presented by political parties be two-thirds gender compliant.

INSPIRING REASONS FROM THE COURT

Justice Mwita heard the case on April 5, and 15 days later issued a judgment that demonstrates the reach of our Constitution on issues of equality and non-discrimination.

He held that the political parties, and by extension the state, are required by the Constitution, whether or not there is legislation, to ensure appointive and elective processes are two-thirds gender compliant. But he put it much more colourfully: “ The Women of Kenya are no lesser beings and it should not be that any time women demand rights granted to them by the Constitution, the readily available answer is that there is no enabling legislation.”

He noted that, under the Political Parties Act, one of the objectives of funding parties from state resources was to promote equality and eradicate gender discrimination, yet parties had failed to take any measures to ensure that women had real opportunities to be nominated as candidates for parliamentary and other elective positions.

Waikwa Wanyoike is the Executive Director, Katiba Institute