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House may be dissolved over gender law, AG Githu Muigai warns

By Wilfred Ayaga | September 2nd 2016 at 00:00:00 GMT +0300

Kenyans could go to elections earlier than 2017 should the impasse on a proposed law to help more women into power persist.

Attorney General Githu Muigai has warned of possible dissolution of Parliament for failing to enact legislation to implement the constitutional Two-thirds Gender Principle.

The AG has further warned of the “possibility that the legitimacy of the incoming parliament post the 2017 General Election being called into question where the Two-thirds Gender Principle is not attained, with all the attendant risks and consequences”.

The opinion addressed to Speakers of two Houses of Parliament Justin Muturi (National Assembly) and Ekwee Ethuro (Senate) cited a Supreme Court advisory that required the House to enact the legislation by August 27, 2016.

“We wish to draw your attention to the possibility that a petition under Article 261 could portend against the current Parliament, thereby initiating the process towards dissolution of Parliament in the event of failure to adhere to the orders and directions of the court,” Prof Muigai said.

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Article 261 provides that if Parliament fails to enact any legislation within the specified time, any person may petition the High Court over the matter.

The Constitution adds that the High Court, in determining the petition, may make an order directing Parliament and the Attorney General to take steps to ensure the necessary legislation is enacted and report progress to the Chief Justice.

If Parliament fails to enact the legislation in accordance to the order, “the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament”.

In the letter, the AG said with the deadline having lapsed, such a bill can only be re-introduced after six months.

Muigai wants the two speakers to urgently convene a meeting to resolve the matter in light of the possible consequences of lapse of the deadline.

The letter dated August 24 reads: “I would strongly recommend that the leadership of Parliament convenes a stakeholder’s meeting to resolve the question and take note of the potential risks and consequences outlined herein above for information and further action.”

The principle is meant to balance the composition of elective offices in Kenya to ensure equity in Government by not allowing one gender to hold more than two-thirds of elective positions.

“Not more than two-thirds of the members of elective public bodies shall be of the same gender,” states Article 81 (b) of the Constitution.

Parliament has failed to pass the law despite repeated attempts by both Houses.

A Government sponsored bill seeking to entrench the two-thirds gender rule failed to sail through the National Assembly in what was attributed to intense lobbying and lack of information on its implications.

Mr Ethuro yesterday confirmed that he had received the advisory opinion, saying Parliament would go out of its way to resolve the conundrum.

“As an institution, we have done everything we could to ensure that we adhere to the Supreme Court opinion. However, all attempts have been unsuccessful. Every institution, including the Judiciary knows that Parliament has made serious efforts to satisfy this constitutional principle,” said Ethuro

He added that Parliament was willing to participate in broader efforts to solve the puzzle.

“As a Parliament, we are still willing to engage all stakeholders to ensure that we move the process forward,” he said.

The Attorney General said Senate has twice failed to debate a similar bill by Senator Judith Sijeny due to lack of quorum.

In contention is how the principle would be achieved, without appearing to give advantage to a particular gender.

The issues raised by the AG have previously been canvassed by the National Gender and Equality commission. When she appeared before the select committee on electoral reforms, NGEC chairperson Winfred Lichuma warned that a delay could cut short the life of the current parliament.

Githu Muigai two thirds gender rule MPs
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