The momentous and long overdue advise by the Honourable Chief Justice David Maraga to President Uhuru Kenyatta, to dissolve Parliament for its failure to enact necessary legislation to implement the not more than Two-thirds gender rule, has left the head of State with no option but to dissolve parliament within 14 days of the advice.
The Supreme Court Advisory Opinion No 2 of 2012 had advised thus-
“We are of the majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015.”
The Eleventh parliament failed to honour this deadline, instead relying on the provisions of Article 261(2) by passing a resolution of the House to extend the deadline as they were entitled to, for a further one year, to August 23, 2016. Despite intense lobbying by KEWOPA as well as other women and human rights organisations, the Eleventh Parliament again failed to enact the law and as such did not meet the August 2016 deadline.
Consequently, the 2017 General Elections were conducted without the necessary enabling legislation and without any effort by political parties and the Independent Electoral and Boundaries Commission to put in place a mechanism to comply with the gender rule. The result is that the Twelfth Parliament is not compliant with Article 27(8) and 81(b) of the Constitution.
In 2017, in High Court case no 371 of 2016 Justice Mativo found that Parliament had defaulted in its constitutional obligation and rendered a declaratory judgment that should it fail to enact the said law within 60 days as ordered it was subject to dissolution. This is the basis for the different petitions to the Chief Justice to dissolve parliament.
It is against this that Chief Justice’s advise to the president comes. It is neither rushed nor inappropriate. It has been a decade in the making. Parliament has had all the time and has repeatedly ignored the advice from the courts including the apex court , thus displaying the highest level of impunity imaginable. The shock reaction from MPs is therefore questionable given that they have not only been aware of the constitutional requirements, but have consistently ignored calls to comply.
Three years into its term and well aware of its obligation through the respective Speakers, opinions from the Office of the Attorney General, various litigation and institutional memory, this Parliament has failed, refused and or neglected to discharge its constitutional obligation. Various petitions to dissolve parliament have been sent to the Chief Justice repeatedly the first of which was sent by WeAre52pc on September 27, 2017. The Chief Justice then received five subsequent petitions in 2019, with the latest from the Law Society of Kenya being submitted on July 20, 2020.
However, this shock reaction by parliament and other leaders is not surprising as it underlines the state of impunity in Kenya. Those of us in power never expect consequences for our actions. The few times consequences follow failure to adhere to constitutionalism and the rule of law, we express shock and outrage. Whether its arrest of those suspected of fraud, hate speech, nullification of a presidential election, or dissolution of parliament, however justified, the consequence our reaction is the same.
As a way forward, it is possible to adhere to the gender rule in the looming parliamentary election without any constitutional or legal amendments. Political parties with the supervision of IEBC can implement non-legislative mechanisms to give equality of opportunity to both women and men to ensure the constitutional gender threshold is achieved.
The primary responsibility is, however, on President Kenyatta to comply with his constitutional obligation, and to demonstrate adherence to the rule of law. JHe must dissolve parliament as advised, and as required by the Constitution. Failure to do so will amount to reinforcing the impunity already demonstrated by Parliament. It would be condemning the country to a state of lawlessness and anarchy. Failure to abide by the advisory would result in irreparable harm to his legacy and plunge the country into further uncertainty.
A referendum is not possible with an illegitimate parliament. Both a parliamentary or a popular initiative, require parliament as part of the process. The Chief Justice’s advise has for now effectively stopped the reggae! This is not also the time to bemoan the cost of elections. These are the considerations parliamentarians ought to have had and discharged their constitutional obligation in good time.
Finally, as citizens, the possibility of a parliament going home prematurely should wake us up to the reality that the PEOPLE through the Constitution are supreme.
- Writer is Narc Kenya national chair and former Minister for Justice