Two-thirds gender rule: Political parties rush to beat deadline

Political parties, among them Deputy President William Ruto’s United Democratic Alliance (UDA) and Raila Odinga’s Orange Democratic Movement (ODM), were yesterday in a last-minute rush to meet today’s deadline to align their list of contestants with the two-thirds gender rule.

If they fail to ensure that no more than two-thirds of their contestants for electoral positions are from one gender by end of business today, the parties will be locked out of the August 9 General Election, the Independent Electoral and Boundaries Commission (IEBC) has said.

This, even as some leaders asked the parties to challenge the requirement by the IEBC in court, saying it was akin to denying Kenyans their right to choose their leaders.

IEBC fingered 43 parties out of 81 parties seeking to participate in the polls for being non-complaint on the two-third gender principle.

Jubilee Party, Amani National Congress (ANC); Narc, led by Kitui Governor Charity Ngilu; and Narc Kenya led by former Cabinet minister Martha Karua are other notable parties to fail the rule.

Appointed positions

The principle provides that not more than two-thirds of holders of elective and appointed positions be of the same gender.

IEBC wants political parties to meet this rule at the nomination stage, citing a court order that argued that the principle stood a better chance of being realised if more of the disadvantaged gender are nominated to run for elective office. For the 290 single-member constituencies, not more than 193 aspirants can be from one gender.

For the 47 Senate positions, not more than 31 can be from one gender.  The principle should be complied with by today midnight, according to the IEBC.

ODM Director of Elections Junet Mohamed, said the party will look for a way to negotiate with the electoral agency with a view to comply with the requirement.

“The party is addressing the issue and, in the next two days, will send back to IEBC lists that are gender compliant by reserving some seats for women in order to comply with the requirement,” said Mr Mohamed.

He, nonetheless, said the gender imbalance were some of the issues proponents of the failed Building Bridges Initiative (BBI) wanted to address but were stopped in their tracks by opponents of the amendment bill who are now sailing in the same ship.

“These are the issues we wanted to address in BBI but people did not see it. They just opposed it for the sake yet we were fighting for women to get their space in leadership,” said the Suna East MP, who was one of the proponents of the BBI process.

Nomination list

ANC Secretary-General Simon Gikuru said they have already embarked on re-jigging their nomination list with a view to meet the requirement.

“It is a very delicate issue but I think we will manage. We are revising our entire list of nominated individuals so as to comply. And since we must comply, we have issued a circular calling on more women and encouraging them to apply,” said Mr Gikuru.

He, however, said that the requirement is an affront on democracy as there is no way democracy can be legislated.

“It is a very hard thing and I think it might not be constitutional because you cannot legislate democracy. You cannot dictate to the people the gender to vote for. We find this rule unconstitutional,” said the SG.

Governor Ngilu admitted to being non-complaint, saying, her party has more women than men on its list but promised to address the issue before the deadline.

“I agree Narc has failed as we actually gave all the slots to women but we are working on it to meet the requirement,” she said.

Several other parties have resorted to picking women randomly to meet the gender requirement with top party officials admitting to looking for women who have no intention to run for elective seats in their non-stronghold regions just to meet the requirement.

High Court

This is as the IEBC insists that it is only enforcing a court order arising from a 2017 constitutional petition by Katiba Institute, which they themselves opposed but lost even after arguing that the requirement can only be enforced after the elections and not during nominations.

In the judgment, the High Court declared that political parties are bound by the requirements of Articles 27 and 81 and that the IEBC is obligated to reject any nomination list of a political party for its candidates for the 290 constituencies and 47 counties if they do not comply with the two-thirds gender rule.

“Non-compliant political parties will not participate in the 2022 General Election for the said elective positions,” said IEBC Chairperson Wafula Chebukati.

Garissa Town MP Aden Duale, however, argued that a rejection of parties’ nomination lists by the IEBC would be a negation of the sovereign will and power of the people as enshrined in the constitution.

He pointed out that the proposed action by IEBC threatens to violate Article 1 on the sovereign power of the people, Article 38 of the constitution on political rights of citizens and candidates and Article 81(a) of the constitution on the general principles of the electoral system on freedom of citizens to exercise their political rights.

The former National Assembly majority leader explained that Article 38 guarantees the free expression of the will of the electors and hence the rejection of the nomination lists shall be a rejection of the free expression of the will of the people.

Democratically nominated

Further, it will also violate political rights of every Kenyan is free to make political choices with the nomination lists by political parties being the result of such choices.

“Through the nomination process, Kenyans democratically nominated candidates for elections. The administrative action by IEBC shall hence negate the sovereign power of Kenyans to democratically elect representatives of their choice,” said Mr Duale.

The UDA lawmaker said political parties may consider filing judicial review proceedings seeking certiorari orders to quash the action of IEBC and prohibitory orders to stop IEBC from rejecting the nomination lists due to the legal issues highlighted herein.

“To the extent that the proposed action by IEBC seeks to actualise the rule devoid of any legislation and without addressing the legal concerns raised herein, it can be subject to challenge in court,” said the MP.

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