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Supreme CourtOtherAdvisory Opinions Application 2 of 2012

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate

Supreme Court of Kenya
11 December 2012
Willy MutungaWM MutungaPhilip Kiptoo TunoiPK TunoiJackton Boma OjwangJB OjwangSmokin Charles WanjalaSC WanjalaNjoki Susanna NdunguN Ndungu
25,650 words in judgment
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The bottom line

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Kenya's two-thirds gender rule for Parliament is not immediately enforceable but must be achieved by August 2015.

What this practically means

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The Supreme Court of Kenya ruled that the constitutional requirement for no more than two-thirds of either gender in the National Assembly and Senate does not have to be met in the March 2013 elections. Instead, Parliament has until 27 August 2015 to pass laws to gradually achieve this goal. However, the rule applies immediately to County Assemblies. The Court also confirmed it can hear disputes from any stage of a presidential election, not just after a winner is declared.

Executive summary

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This is an Advisory Opinion of the Supreme Court of Kenya rendered under Article 163(6) of the Constitution, upon a reference by the Attorney-General. The Court addressed two questions. First, whether the two-thirds gender rule under Article 81(b) of the Constitution requires immediate implementation during the March 2013 general elections or progressive realization. By a majority (Tunoi, Ojwang, Wanjala, Ndungu SCJJ), the Court held that Article 81(b) is a general principle that, for the National Assembly and Senate, has not crystallized into a directly enforceable right and is therefore subject to progressive realization. The majority set a deadline of 27 August 2015 for Parliament to enact legislative measures to give effect to the principle. The Court distinguished County Assemblies under Article 177, where the rule is immediately applicable. The Chief Justice, Mutunga, dissented, arguing that the two-thirds gender principle must be implemented immediately in the March 2013 elections, as it is a non-discrimination right reinforced by national values, CEDAW, and the history of women's struggle. He held that a Parliament failing to comply would be unconstitutional. Second, the Court unanimously held that the Supreme Court has jurisdiction under Article 140 read with Article 163(3)(a) to entertain disputes arising from any stage of the Presidential election process, not only after the declaration of a President-elect. The Court found a lacuna in Article 140(1) but concluded that the framers intended the Supreme Court to adjudicate all Presidential election disputes. In the event of a second round, the 30-day period under Article 138(5) runs from the date disputes in respect of the first round are resolved. The Court also affirmed its advisory opinion jurisdiction, holding that the matters raised concerned county government and were of great public importance.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.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 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?
  2. 2.Whether an unsuccessful candidate in the first round of Presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution?

Key legal issues

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01

Whether the two-thirds gender rule under Article 81(b) is immediately enforceable or subject to progressive realization for the National Assembly and Senate.

Holding

The majority held that Article 81(b) is a general principle, not a fully crystallized right for the National Assembly and Senate, and is therefore subject to progressive realization, with legislative measures required by 27 August 2015.

Reasoning

The Court reasoned that Article 81(b) stands as a general principle under the electoral system, and when read with Articles 97 and 98 on membership of the National Assembly and Senate, it has not been transformed into a specific enforceable right capable of immediate realization. The word 'shall' does not always command immediate action; it can imply a broad obligation requiring a chain of actions by multiple agencies. The Court distinguished County Assemblies under Article 177, where the rule is immediately applicable. The majority set a deadline of 27 August 2015 for legislative measures, drawing from Article 100 and the Fifth Schedule.

p. 22
02

Whether the Supreme Court has jurisdiction to hear disputes arising from the first round of a Presidential election under Article 140.

Holding

The Court unanimously held that it has jurisdiction to entertain disputes from any stage of the Presidential election process, not only after the declaration of a President-elect, and that the 30-day period for a second round runs from the resolution of first-round disputes.

Reasoning

The Court found a lacuna in Article 140(1), which only provides for challenging the election of a President-elect. However, a Presidential election is a process with multiple stages. Reading Article 87(2) alongside Article 163(3)(a), the Court concluded that the Supreme Court was intended to adjudicate all disputes arising from the Presidential election. To ensure fairness and legitimacy, the Court must entertain disputes at any critical stage. The Court read into Article 138(5) that the 30-day period for a fresh election runs from the resolution of first-round disputes.

p. 27

Legal principles established

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  • The two-thirds gender principle in Article 81(b) is a general goal for Parliament, not an immediately enforceable right for the 2013 elections.
  • Parliament must enact legislation to implement the gender rule for the National Assembly and Senate by 27 August 2015.
  • The gender rule is immediately enforceable for County Assemblies under Article 177 of the Constitution.
  • The Supreme Court has jurisdiction to hear disputes from any stage of a presidential election, not only after a President-elect is declared.
  • If a presidential election goes to a second round, the 30-day period for that round starts when disputes from the first round are resolved.

Court orders

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  1. 1.The Court rendered an Advisory Opinion on the two questions referred by the Attorney-General.

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

Willy Mutunga
dissenting

Wrote the judgment

The Chief Justice dissented on the gender representation question, holding that the two-thirds gender principle must be implemented immediately during the March 2013 general elections, not progressively. He argued that the Constitution's values, non-discrimination principles, and the history of women's struggle for representation demand immediate realization, and that a Parliament failing to comply would be unconstitutional.

I hold, therefore, in the words of the South African Constitutional Court in August v The Electoral Commission CCT 8/99 that Parliament by its silence cannot deprive the women of this country the right to equal representation.p. 46
Philip Kiptoo Tunoi
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
SC WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(6) of the Constitution of Kenya, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The effect is that Article 81(b) of the Constitution is amenable only to progressive realization – even though it is immediately applicable in the case of County Assemblies under Article 177.
p. 4 Progressive realization of gender rule
Bearing in mind the terms of Article 100 on promotion of representation of marginalised groups and of the Fifth Schedule prescribing time-frames for the enactment of required legislation, we are of the majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015.
p. 23 Deadline for legislative measures
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.
p. 19 Interpretation of 'shall' in the Constitution
Only a truly deserving case will justify the Court's Advisory Opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to first-instance-Court litigation.
p. 10 Limits of advisory opinion jurisdiction

Key timeline

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2012-12-11
Supreme Court delivers Advisory Opinion on gender representation and presidential election disputes.
2013-03-04
General elections held; gender rule not immediately enforced for Parliament.
2015-08-27
Deadline for Parliament to enact laws implementing the two-thirds gender rule for National Assembly and Senate.

Practical implications

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For lawyers

Gender rule litigation strategy

When challenging gender representation in Parliament, argue progressive realization with a 2015 deadline, not immediate enforcement. For County Assemblies, argue immediate applicability under Article 177. Use this distinction to frame petitions: seek orders for legislative action by the deadline, not nullification of elections.

For businesses

Board gender diversity planning

While this ruling targets Parliament, it signals Kenya's constitutional commitment to gender balance. Businesses should proactively review board composition to align with evolving norms. Expect future legislation or regulatory pressure mirroring the two-thirds principle for corporate boards. Start diversity initiatives now to avoid compliance rush.

For individuals

Your right to challenge elections

If you are a candidate or voter, you can challenge any stage of a presidential election—not just the final result. For example, disputes over the first-round vote count can go directly to the Supreme Court. This gives you a broader window to raise irregularities before a runoff, ensuring the process is fair from start to finish.

Frequently asked questions

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What is the two-thirds gender rule in Kenya?+

It is a constitutional principle requiring that no more than two-thirds of members in elective bodies be of the same gender. The Supreme Court ruled it applies immediately to County Assemblies but must be gradually achieved for Parliament by August 2015 through new laws.

Can I challenge a presidential election before the final result in Kenya?+

Yes. The Supreme Court confirmed it can hear disputes from any stage of a presidential election, not just after a winner is declared. This includes challenges to the first-round process, and if a runoff is needed, the 30-day period starts after first-round disputes are resolved.

When must Kenya's Parliament comply with the gender rule?+

Parliament must enact legislation to implement the two-thirds gender rule for the National Assembly and Senate by 27 August 2015. Until then, the rule is not immediately enforceable for those bodies, but it is for County Assemblies.

Does the gender rule apply to Kenya's County Assemblies?+

Yes, immediately. The Supreme Court distinguished County Assemblies under Article 177, where the two-thirds gender principle is directly enforceable. This means County Assemblies must comply with the rule from the March 2013 elections onward.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "In the Matter of the Principle of Gender Representation in the National Assembly and the Senate", Case Analysis (2012). Advisory Opinions Application 2 of 2012. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2012/5/eng@2012-12-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.