13 while the people for which the said provisions are meant to protect are treated as if they are outside looking in. In my view, without any statutory or regulatory framework effectuating the rights of the marginalised, the State is simply perfecting tokenism and it was the realisation that the State was not upholding the rights of the marginalised that the Constitution expressly provided for the same. The state was directed to put in place measures that would guarantee the full enjoyment of the fundamental rights and freedoms in Articles 6(3), 27, 35, 38 and 56 of the Constitution of Kenya, 2010 with specific attention to minorities and indigenous people 1.9.4.7 The electoral system is also required to comply with the principles that: (b)not more than two-thirds of the members of elective public bodies shall be of the same gender; and (c) fair representation of persons with disabilities. 1.9.4.8 Political parties are bound by the two-thirds gender rule in the process of nominating candidates and the IEBC has power to reject nomination lists that do not comply with the rule (Katiba Institute v IEBC, Constitutional Petition 19 of 2017). However, the two-thirds gender rule was suspended in respect of the 2022 general election as was held in the case of Adrian Kamotho v IEBC, JR Misc No. E071 of 2022, and confirmed in Cliff Ombeta & Another v IEBC, Constitutional Petition E211 of 2022 (consolidated). 1.9.4.9 Party list slots ought to be reserved for persons who would otherwise be excluded in the firstpast-the-post elections for varied reasons. It is not open for political parties to adopt their own meaning of ‘special interest’ (Commission for the Implementation of the Constitution v Attorney General & 2 Others, Civil Appeal 351 of 2012). Therefore including persons who are able to contest elective positions – such as presidential and deputy presidential candidates – in party lists amounts to an ‘irrational superimposition of well-heeled individuals on a list of the disadvantaged and marginalized to the detriment of the protected classes or interests’ (Commission for the Implementation of the Constitution v Attorney General & 2 Others, Civil Appeal 351 of 2012). 1.9.4.10 While acknowledging that the term ‘special interest’ is not defined by the Constitution, the Court of Appeal in Commission on the Implementation of the Constitution v Attorney General & 2 Others, Civil Appeal 351 of 2012, ruled that whatever interpretation is given to the term, it must bear the same meaning as marginalised groups. 1.9.4.11 The IEBC is obligated to supervise the process by which parties nominate candidates to their party lists (National Gender and Equality Commission (NGEC) v IEBC, Nairobi Constitutional Petition No. 147 of 2013). 1.9.4.12 A party list should only include persons who meet the suitability and eligibility requirements for election to the relevant office. 1.9.5. Boundaries Delimitation and Representation 1.9.5.1 Three provisions under the General Principles of the Electoral System in Article 81 of the Constitution relate to representation. The Article stipulates that the electoral system is based on the principles that: ‘(b) not more than two-thirds of the members of elective public bodies shall be of the same gender; (c) fair representation of persons with disabilities; (d) universal BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION