In mid-2012, the Attorney General of the Republic of Kenya filed an application for an advisory opinion to the Supreme Court of Kenya; on whether the two-third gender principle should be realised immediately or progressively. This was necessitated by the provisions of Articles 27 and 81 of the Constitution that provide in sum that not more than two-thirds of the members of judicial and appointive bodies shall be of the same gender. While the realisation of this principle was clearly mapped for county assemblies in the devolved units; it was not clear for the National Assembly and the Senate.
Through the 2012 Supreme Court Advisory Opinion No. 2, the 5-judge bench’s majority decided that the principle should be realised progressively. Only the Chief Justice gave his dissenting opinion that the one-third gender principle should be realised immediately.
It is these turn of events that sparked my interest on the role of judiciaries in constitution making; and particularly in promoting gender equality. My point of focus is to put a case forward for the need for the Judiciary to uphold the provisions and spirit of the Constitution on gender equality; particularly the two-third gender principle in elective and appointive posts.
I argue firstly, that the Kenyan Supreme Court employed a formal or textual understanding of the principle. The two-third gender principle is stated in the gendered assumptions that the men and women of Kenya are essentially the same or alike; and therefore accords them similar treatment. This is termed in already established understandings in feminist academic literature as formal equality and has been critiqued for producing disparage results because men and women are not similarly situated; they have different experiences in their historical and cultural contexts. Treating them the same is therefore to perpetuate their already established inequality.
Secondly, I argue that the Constitution of Kenya’s two third gender principle creates a basis upon which women may challenge the composition of appointive and elective bodies; it cannot in itself guarantee that the principle will be realised. Constitutional equality provisions are usually expressed in abstract generalities, so that it is left to judges to interpret them, and provide the scope of their application. One immediately sees the need for litigation and access to the courts, and the relevance or importance of courts in advancing women’s rights.
The best way for me to demonstrate the way the Kenyan Supreme Court could have ruled in favour of the immediate realization of the two-third principle is to actually re-write the judgment itself. I therefore hope to demonstrate how the Supreme Court could have employed a substantive and contextual, rather than a formal or textual understanding of the two-third gender principle.