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This is an Open Call to the Public for Proposals on the attainment of the Supreme Court Advisory Reference No. 2 of 2012 on the Two-thirds Gender Principle, in line with Article 10 of the Constitution.

BACKGROUND On the 8th day of October 2012, the Attorney General of Kenya filed an Advisory Reference in the Supreme Court requesting direction on the attainment of the Two-thirds gender principle in line with Articles 27 and 81 (b) of the Constitution

The main question before the Supreme Court was whether this principle was realizable immediately or progressively, based on the above constitutional provisions. This was in the absence of a clear mechanism for the principle to address women’s representation in Parliament namely the National Assembly and the Senate. Article 27 of the Constitution provides that all are equal under the law and entitled to equal opportunities, in political, economic, cultural and social spheres. It states that to give full effect to the realization of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage. Additionally, the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

Article 81 (b) of the Constitution, provides that: Not more than two-thirds of the members of elective public bodies shall be of the same gender.

On the 11th of December 2012 the Supreme Court ruled by a majority that:

Article 81(b) lacked a normative framework for attainment unlike Article 177 and, therefore, had not crystallized into a specific and enforceable right. It needed to be transformed into a full right in relation to Articles 97 and 98 of the Constitution through certain measures being taken by the State. Accordingly, it could not be realised immediately i.e. with the general elections of March 4th, 2013.

Bearing in mind the terms of Article 100 on the promotion of representation of marginalised groups, and the Fifth Schedule (prescribing time-frames for the enactment of required legislation), the Supreme Court set the time for the maturation of the principle in relation to Articles 97 and 98 of the Constitution as 27th August, 2015 i.e. the date by which a normative framework ought to be in place to give effect to Article 81(b) in relation to the National Assembly and the Senate. This was in line with the timeframe of such legislation under the Constitution.

CALL FOR PROPOSALS On 3rd of February 2014, the Attorney General constituted a Working Group on the Implementation of the Supreme Court Ruling on the Attainment of the Two-Thirds Gender Principle. The membership comprises of: the Attorney General’s Office, Ministry of Devolution and Planning (Directorate on Gender), National Gender and Equality Commission (NGEC as Convener), Independent Electoral and Boundaries Commission, Office of the Registrar of Political Parties; Commission on the Implementation of the Constitution; Commission on Administrative Justice; Parliament (Committees on the Implementation of the Constitution and Legal Affairs, respectively); Kenya Women’s Parliamentary Association and FIDA –Kenya. In pursuit of the Constitutional requirement on public participation, the Technical Working Group invites members of the public to submit proposals on a mechanism for the attainment of the Two-third gender in the National Assembly, the Senate, and representation of marginalised groups in line with Article 100 of the Constitution. We encourage all members of the public, institutions and constitutional experts to submit their proposals through the National Gender and Equality Commission who are the Secretariat for the Technical Working Group

III. GUIDELINES FOR SUBMISSION (INSTRUCTIONS) Submissions should be made through EITHER one of the following ways: - Email to: twothirds(at)ngeckenya.org -Hand delivery to NGEC offices, - Postage.

Please indicate subject line on envelope ‘two-thirds principle’. Submission format: The proposal should be submitted in writing and be not more than 500 words;

The proposal must factor in current constitutional realities i.e. Articles 27, 38, 81, 97, 98 and 100 of the Constitution.

Each submission shall be acknowledged and considered. The deadline for submissions shall be Monday October 6, 2014

IV. PROCESS After the deadline of submission, the Working Group shall review all the proposals and in line with its mandate, submit recommendations to the Attorney General of Kenya. Where necessary, individuals may be called upon to present their proposals to the Working Group. V. CONTACTS Commission Secretary National Gender and Equality Commission Solution Tech Place, 1st floor, Longonot Road, next to Crowne Plaza, Upper Hill P. O. Box 27512-00506 NAIROBI

Phone : 020 3213 307 https://twitter.com/NGECKenya
https://www.facebook.com/ngeckenya Email: twothirds(at)ngeckenya.org