The High Court has declared the two-thirds gender rule directive by the Independent Electoral and Boundaries Commission (IEBC) to political parties unconstitutional.
While delivering his judgment on Monday, June 14, Justice Antony Mrima noted that the electoral body led by Wafula Wanyonyi Chebulati failed to conduct public participation before issuing the directive to political parties.
Justice Mrima noted that the directive was against some of the Articles of the Constitution, in particular Article 27 which deals with discrimination.
However, the court directed that the two-thirds gender rule be applied during the 2027 General Election.
The judgment by Justice Mrima comes after a section of political parties moved to court accusing IEBC of trying to force several political parties to withdraw nomination certificates issued to certain candidates and award them to others.
In a notice directed to political parties on May 12, IEBC warned political parties that they would be locked out of the polls if they failed to resubmit their nomination list meeting the two thirds gender principle.
“Do note that a revised list that does not comply with the two-thirds gender principle will be rejected in its totality and all candidates on the list cannot stand for election on 9 August 2022.
"Political parties that failed to meet the two-thirds gender principle in their nomination lists submitted to the Independent Electoral and Boundaries Commission (IEBC) must hand in fresh lists by May 11, 2022, at 5pm or risk being locked out of August 9, 2022, General Election," Chebukati directed.
Nonetheless, parties received a temporary reprieve after Justice Anthony Ndung’u directed the IEBC to shelve the directive temporarily until the matter was heard and determined.
“Applying those principles to the instant matter, I am persuaded that the applicant has made out an arguable case and a stay would be efficacious in the circumstances.
“It is directed that the substantive motion be taken out and served within the next 3 days and be served together with submissions in support. Responses must be filed within 3 days of services to be filed contemporaneously with submissions by the respondent,” he Justice Ndung'u.
Consequently, Chebukati stated that they would wait for the court's directive before deciding on the way forward in consultation with the political parties.
