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More Pain For IEBC As Court Blocks Gender Rule Directive

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UPDATE 7.40pm: The High Court has responded to a lawsuit filed against the Independent Electoral and Boundaries Commission (IEBC) by stopping the implementation of its directive on complying with the two-thirds gender rule.

Justice Anthony Ndung’u noted that the court was satisfied to suspend the gender party rule by the commission until the matter is properly heard and determined.

“I am persuaded that Adrian Kamotho has made out an arguable case and a stay would be efficacious in the circumstances,” he ruled.

The Independent Electoral and Boundaries Commission (IEBC) has been sued over its two-thirds gender policy, with only one day left for political parties to comply to it ahead of the August 9 general elections.

A Nairobi-based lawyer, Adrian Kamotho, while filing the suit at the High Court, is also challenging IEBC’s directive to punish all candidates by locking them out of the general elections in case the sponsoring party fails to comply with the rule by Thursday, May 12.

The lawyer wants the court to do away with the notice arguing that the directive is draconian and unreasonable.

“That to the extent that the Respondent places the burden of failure to comply with the two-thirds gender principle on candidates and further imposes communal punishment on all candidates by barring them from elections on August 9, 2022, the notice is unreasonable and draconian. Besides, its prescriptions are incompatible with the national values and principles espoused at Article 10 of the Constitution,” court documents seen by Viral Tea read in part.

The High Court in Nairobi, Kenya. /FILE

The lawsuit also put to task some parties meeting the threshold of male nominees and others exceeding the threshold for female nominees, thus necessitating a more meticulous approach to the gender balancing challenge, as opposed to the simplistic and rigid stance by the IEBC.

It also termed IEBC’s directive as discriminatory and prejudicial as it unfairly targets the political parties while leaving out the independent candidates who stand an equal chance of winning the elective positions in the upcoming polls.

IEBC was also accused of not undertaking any public participation prior to the issuance of the notice to all political parties to conform to the policy ahead of the deadline.

“That Section 13 of the Elections Act, 2011 provides that a political party shall nominate its candidates for an election at least ninety days before a general election in accordance with its constitution and nomination rules. By directing political parties to nominate candidates outside the statutory timelines, the Respondent is driving political parties through the path of illegality,” added the suit.

Kamotho warned that if the directive is not judicially redressed, it could manifest into a political crisis which could trigger civil unrest given the emotive nature of the political scene in the country.

The application was certified as urgent.

IEBC Chairperson Wafula Chebukati in a statement released on Monday, May 9 had rescued a number of political parties in the eleventh hour as non-compliance from them would have seen them locked out of the elections.

“In keeping with the provisions of Article 83 (3) of the Constitution, which stipulates that the conduct of elections should be facilitative, the Commission extends the deadline for political parties to submit their lists of nominated persons to May 12, 2022, at 5 pm,” read the statement by IEBC in part.

IEBC had initially given political parties until Monday, May 9 at 11.59 pm to adhere to the two-thirds gender rule.

After Chebukati noted a laxity in compliance by most of the parties, some of them had adhered to the directive, thus allocating more time for the rest to conform to the rule.

The initial IEBC report had seen 43 parties failing to comply with the two-thirds gender rule for National Assembly nominations. For the senate, 33 parties had not met the requirement.

ODM leader Raila Odinga and President Uhuru Kenyatta. /TWITTER

President Uhuru Kenyatta’s Jubilee Party, UDA under Deputy President William Ruto and ODM under former Prime Minister, Raila Odinga were amongst the parties which faced being locked out of the polls due to non-compliance.

Others included Musalia Mudavadi’s Amani National Congress (ANC), Movement for Growth and Democracy (MDG) party, Narc of Charity Ngilu and Narc Kenya of Martha Karua as well as the Mwangi Kiunjuri’s The Service Party (TSP). ANC had to revise its list of nominated Members of Parliament so as to comply with the rule.

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