Members of Parliament risk losing their jobs for failing to implement the controversial two-thirds gender rule meant to enhance representation of women.
Should the petitions filed with Chief Justice David Maraga sail through, the CJ will be expected to advise the President Uhuru Kenyatta to send the MPs home. Although the rule, provided for in the 2010 Constitution, is generally aimed at ensuring gender parity and fairness in appointments, it was brought about after realisation representation of women, especially in the Kenyan Parliament, had remained minimal.
On Thursday, the Justice Maraga-led judiciary received the six petitions, one by Law Society of Kenya president Nelson Havi, seeking the dissolution of both Houses for failing to enact the necessary legislations to effect the Two-thirds Gender rule. And now, Maraga is under pressure to act in the petitions.
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The speakers of the two Houses have 14 days to file responses and thereafter, the CJ will be expected to advise the President to dissolve Parliament, a move that would render the 418 lawmakers including 349 at the National Assembly and 67 in the Senate, jobless.
Others who have filed similar petitions are former Marakwet West MP David Sudi, Margaret Toili, Fredrick Mbugua, Bernhard Aoko and Stephen Owoko. For 10 years now, parliament has repeatedly failed to enact the Constitution of Kenya (Amendment) Bill 2018, also known as the Gender Bill, which seeks to legislate on the constitutional requirement that neither gender should have more than two-thirds in elective positions.
Article 27(8) of the Constitution provides thus: “The State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”
The Bill would find a formula for meeting the constitutional requirement ensuring gender parity in elective and appointive positions.
There have been four attempts by the National Assembly to enact the Gender Bill with the most recent one being on February 27, last year.
In the last attempt, the National Assembly lacked the quorum of 233 MPs to vote for the Bill given it requires two-thirds to pass the it.
A failed parliament
Havi, who spoke after a mention on the petition, said Parliament has failed to enact legislation despite the High Court in March 2017, once again finding that MPs had refused in their constitutional obligations to ensure the gender principle is enforced. Then, the court gave the MPs 60 days to do so, but still failed.
Havi, who was flanked by the LSK Council, said the failure had persisted not withstanding two decisions of the Judiciary on the matter. In 2012, the Supreme Court saved the day for parliament, giving them until August 27, 2015, to enact needed legislation.
The court ordered that should parliament fail to enact the law within the 60-day period, Article 261 of the Constitution would apply, where anyone could petition Justice Maraga to advise the President to dissolve parliament.
“Article 261(7) provides that if parliament fails to enact any court-ordered legislation to implement the Constitution, the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament,” says Havi.
Before the six petitions, in late 2017, Maraga received two petitions urging him to act swiftly and advise the President to dissolve parliament over the controversy.
Currently, 78 per cent of the MPs are male against the constitutional maximum of two-thirds or 67 percent.
If Maraga rules in favour of the petitioners and goes ahead to ask President Kenyatta to dissolve the Houses, then the Head of State would have been handed a carrot to dangle to hapless MPs.
With the Building Bridges Initiative (BBI) referendum in mind, and rebellion in Parliament growing, pundits say the dissolution card may work in favour of the President.
While Havi insists the President is tied to the CJ’s advice, the exigencies of the times - corona pandemic, President Kenyatta running out of time and the BBI card - may not play in favour of a dissolution.
Senate Minority Whip Mutula Kilonzo Junior said the petitions are nothing new.
He noted past attempts by both Houses to legislate on the same.
“Parliament can show that there has been a deliberate and intentional effort to address the matter. The golden rule of statutory interpretation may be applied where an application of the literal rule would lead to an absurdity,” said Mutula Junior.
He said dissolving parliament would not cure anything given the next parliament could still come with similar numbers.
“Dissolving parliament now will not add any value given there will be no parliament to legislate the law. In any case, BBI had similar proposals, to address the matter,” said Makueni senator.
National Gender and Equality Commission (NGEC) member Priscilla Nyokabi said she hoped BBI would address the gender rule issue in the legislature, counties and in the Executive.
“I believe with BBI, we will be able to sort out the matter once and for all and have the next Parliament compliant. This will extend to any other area that will have to be addressed,” said Nyokabi, a former Nyeri women representative.
National Assembly chairman of Justice and Legal Affairs Committee Muturi Kigano said the petitions do not serve interests of Kenyans, terming them unnecessary war.
“Who is Havi’s client? Do Kenyans want to go into an election now? The country cannot be held captive by legalism. We must be progressive we are busy fighting Covid-19 and the petitions are just a distraction,” said Kigano.
He said the work of the Constitution was to make the country work and not the vice versa.
But, Uasin Gishu woman representative Gladys Shollei said she supported LSK’s position noting there had been no genuine effort to legislate on the gender rule.