Arguing before five judges of the court, several state organs and organisations championing the rights of women said the rule is a mandatory obligation that must be achieved in the forthcoming elections.
Most parties agreed the provision is a fundamental right that cannot be taken away. Making his submission before the court yesterday, Attorney General Githu Muigai said it is not clear how the gender principle will be achieved and whether it should be achieved progressively or instantly.
The government's chief legal advisor said there is a lacuna in law and being the final determinant, he sought the opinion of the Supreme Court as the matters were complex.
The AG said whereas a three-judge bench of the High Court had ruled that the rule can be achieved progressively, two others judges of the court had should be achieved instantly.
According to Muigai, the constitution appears to be "giving with one hand and taking away with the other" as Article 81(b) of the constitution states that not more than two-thirds members shall be of the same gender, while Article 27(6)-was proposing legislative and other measures, including affirmative action, to be put in place to achieve the rule.
He also said that Article 100 has directed Parliament to enact legislation to promote the representation of women among other marginalized group.
The AG said that the drafters of the constitution were clear and their intention known- as seen in the Bomas and the Harmonised draft-this clarity was taken away by MPs in Naivasha.
On its part, the Independent Electoral and Boundaries Commission (IEBC) through lawyer Paul Nyamodi said it will abide by whatever decision the court will make.
However, Nyamodi said the court should give direction as to how the gender balance should be maintained to the conclusion of the life of parliament.
This he said the gender balance can be titled any time through death of a Member of Parliament or election petition. The Commission on the Administration of Justice (CAJ), the National Gender and Equality Commission and the Center for Multi Party Democracy (CMD-Kenya) agreed that the principle must be achieved in the next elections.
The CIC and Centre for Rights, Education Awareness (CREAW), FIDA-Kenya and Kenya Human Rights Commission (KHRC) asked the court not to give its opinion saying that there was no ambiguity in law.
The Constitution requires at least one-third of the members of the legislature be of one gender. According to the requirement, at least 117 members of the eleventh Parliament must be from one gender.
