National Gender and Equality Commission v Independent Electoral and Boundaries Commission & Attorney General
The bottom line
#The IEBC must ensure party lists meet constitutional standards and promote inclusion, but it cannot dictate how parties select their candidates.
What this practically means
#Executive summary
#Key legal issues
#Meaning of 'election' in Article 90 and the IEBC's role in party list creation
Article 90 does not require the IEBC to conduct or supervise internal party elections for positions on party lists; how parties compile lists is entirely within the parties' mandate, subject to their own nomination rules.
Reading Article 90 in context, its opening title is 'Allocation of Party list seats'. The election occurs when the IEBC allocates seats in proportion to seats won under Article 90(3), in the order of the lists. Regulation 55(1) and paragraph 19 of the Second Schedule to the Political Parties Act confirm that lists are prepared under each party's own nomination rules. Disputes over internal party processes lie with the Political Parties Disputes Tribunal or the High Court.
Scope of the IEBC's duty to conduct and supervise elections for party list seats
The IEBC must satisfy itself that submitted lists meet constitutional and statutory criteria, including qualification of nominees, gender alternation, and regional and ethnic diversity, but may not direct how parties prepare the lists.
Sections 34-37 of the Elections Act and regulations 54 and 55 of the General Regulations give effect to Article 90. The IEBC's supervisory role is to scrutinise lists for compliance and to reject unqualified nominees under regulation 54(5), not to manage internal party nomination processes.
Whether the IEBC should define 'special interests', 'marginalised groups' and related terms, and whether the court should issue guidelines
The court declined to issue guidelines or define the terms, holding that such guidelines must be developed participatorily by the IEBC with other commissions and stakeholders; the court also declined to revisit the Micah Kigen decision.
Following Prinsloo v Van der Linde, the court warned against sweeping interpretations in complex equality matters, preferring incremental case-by-case development. It had not heard the political parties or interrogated specific nominees. Guideline-making must be participatory under Article 10 and the court cannot take over the responsibilities of other constitutional bodies.
Whether the IEBC complied with its constitutional responsibility
The IEBC failed its obligation by not publicising the party lists under regulation 54(8) and by issuing only formal guidelines without taking active steps to promote participation of vulnerable groups.
The evidence showed irregularities in the lists (non-members on lists, no gender balance, no deaf nominees). Publication was required to enable public scrutiny and dispute resolution under Article 88(4)(e) and section 74 of the Elections Act. The IEBC's implementation of rights must be active, not passive, per Article 21 and Article 249(1).
Appropriate remedy given the post-election posture
Rather than annulling the lists, the court ordered publication of the county assembly party lists, dispute resolution within set time limits, gazettement after disputes are determined, and a programme to increase participation of marginalised groups.
Remedies must account for the existing legal and factual situation: the General Election had occurred, some nominees were already gazetted, and lists could not be amended. Annulling entire lists was infeasible; striking out names would prejudice parties and nominees who were not before the court.
Legal principles established
#- The 'election' in Article 90 refers to the allocation of party list seats by the IEBC from lists submitted by political parties, not internal party elections for positions on the lists.
- The IEBC's duty to conduct and supervise elections under Article 90(2) extends to ensuring that submitted party lists comply with the Constitution, the Elections Act and the regulations.
- Failure to publish final party lists in at least two newspapers of nationwide circulation under regulation 54(8) is a breach of the IEBC's supervisory duty.
- Once gazetted under Article 105, challenges to membership of the National Assembly and Senate lie only by election petition.
Court orders
#- 1.The IEBC shall within 5 days from the date of the judgment publish, in accordance with regulation 54 of the Election (General) Regulations, 2012, the party lists submitted for the parties that have qualified in accordance with Article 90(3) for membership of the County assemblies under Article 177 of the Constitution in at least two newspapers of national circulation.
- 2.The IEBC shall immediately put in place mechanisms to resolve any disputes concerning the lists in accordance with Article 88(4)(e) of the Constitution as read with section 74 of the Elections Act, 2011 upon publication of the party lists.
- 3.The IEBC shall finalise settlement of all disputes submitted to it in respect of the party lists within 7 days from the date of publication of the party lists.
- 4.The final list of nominees shall be gazetted 7 days after the determination of any disputes.
- 5.The IEBC is directed to develop a program, in conjunction with constitutional and statutory commissions and political parties, to develop policies and measures geared towards increasing the participation of women, youth, persons with disabilities, marginalised groups and other vulnerable persons to effectively participate in political processes.
- 6.Each party shall bear its own costs.
- Jurisdiction invoked
- Original constitutional jurisdiction under Article 165 of the Constitution (petition for enforcement of constitutional provisions on party list seats)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "National Gender and Equality Commission v Independent Electoral and Boundaries Commission & Attorney General", Case Analysis (2013). Not stated in the judgment (petition dated 5th March 2013). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.