It is true the constitution will present the courts with inconsistencies, grey areas, contradictions, vagueness, bad grammar and syntax, legal jargon, all hallmarks of a negotiated document that took decades to complete. It reflects contested terrains, vested interested that are sought to be harmonized, and a status quo to be mitigated. These features in our constitution should not surprise anybody, not the bench, or the bar or the academia. What cannot be denied, however, is we have a working formula, approach and guidelines to unravel these problems as we interpret the constitution. We owe that interpretative framework of its interpretation to the Constitution itself. – W. Mutunga, CJ, Supreme Court of Kenya, Advisory Opinion No. 2 of 2012.
On 10th October 2012, the Attorney General sought the Supreme Court’s advisory opinion on one notable issue: Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1)(b), Article 116, and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one third gender rule or if it requires the same to be implemented during the general elections scheduled for 4th March 2013.
This month, the Supreme Court delivered its Advisory Opinion on the issue raised above, in which the majority view supported progressive realisation of the gender equity rule and whereas a dissenting view in the minority argued for immediate realisation of the constitutional rule. The four Supreme Court judges in majority namely Justices Tunoi, Ojwang, Wanjala, Ndungu were of the opinion that the gender equity principle in Article 81(b) of the Constitution is a statement of aspiration and would only transform into a specific, enforceable right after it is supported by a concrete normative provision.
In arriving at this majority view, the following statement was made:
“The word “shall” in our perception, will translate to immediate command only where the task in question is a cut-and-dried one, executed as it is without further moulding or preparation, and where the subject is inherently disposable by action emanating from a single agency.”
Read the rest of this article on the CIPIT Law Blog here.