Kenya is likely to go to the next elections in 2017 without having met a constitutional requirement that either gender holds at least one-third of the seats in the National Assembly.

That would open the door for legal challenges to the legitimacy of the next parliament after the Supreme Court ruled in December 2012 that a formula for meeting the threshold be found by August 27 this year, five years to the day after the promulgation of the constitution.

With only five months remaining and no solution in sight, stakeholders are asking the court for more time to make wider consultations.

A State Law Office source said the Technical Working Committee has various options: Ask for more time from the courts, propose the addition of National Assembly seats or compel political parties, through constitutional amendments, to nominate more women to parliament.

Attorney-General Prof Githu Muigai told The EastAfrican he had forwarded the TGW’s interim report on the gender rule to the Cabinet for direction.

There are only 16 elected women in the 348-member National Assembly — excluding the 47 county representatives, which seats men were not allowed to contest.  

Article 81(b) under Chapter 7 of the Constitution, which deals with representation, states that “not more than two-thirds of the members of elective public bodies shall be of the same gender” but does not provide practical ways of achieving the requirement. 

A suggestion during the constitutional review to set aside women-only constituencies was rejected as it was seen as discriminatory.

Chairman of the Commission on Administration of Justice (Ombudsman) Otiende Amolo, who was on the Committee of Experts that drafted the 2010 Constitution, says they had anticipated the problem and proposed to retain the 210 constituencies but MPs added 80 more, making it more difficult to meet the threshold.

“With 94 female representatives from the counties (two for each county), 12 special seats to be filled by women, including those for the disabled and the youth, and about 10 elected women from gender-neutral electoral areas, the threshold of 116 women would have been met,” said Mr Amolo.

He said the CoE considered rejecting the MPs’ changes but realised that it would put the constitutional review in jeopardy. They then considered deleting the gender principle from the draft constitution, “but again realised that if we deleted it, then nobody would consider it for a long time despite the fact that women have been agitating for increased representation for decades.”

He suggests an increase National Assembly seats; compel parties to nominate more women; or amend the constitution to allow nomination of two women per county or delete the gender rule.