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Kenya at sixes and sevens over Chief Justice order to dissolve parliament

Collins Odhiambo
Nairobi, Kenya

Kenya is at sixes and sevens after Chief Justice David Magara has taken government to court calling for the dissolution of parliament over failure to enact legislation meant to operationalize a two-thirds gender rule, as stipulated in Kenya’s new constitution promulgated in 2010.

In documents filed at the country’s High Court on Tuesday, the Attorney General, Mr. Paul Kihara argued against dissolving the parliament, and warned the move would have far-reaching ramifications such as extending the current presidential term limit.

In his advisory to the president, Maraga said it is ‘incontestable’ that Parliament has not complied with the High Court order. “As such, for over 9-years now, Parliament has not enacted the legislation required to implement the two-thirds gender rule which, as the court of Appeal observed in its said judgement, is clear testimony of Parliament’s lackadaisical attitude and conduct in this matter. Consequently, it is my constitutional duty to advise Your Excellency to dissolve Parliament under Article 261 (7) of the Constitution,” Maraga said.

The Chief Justice based his arguments on Article 27(3) of the constitution which stresses the need for gender balance. The clause says “women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”

According to the Kenyan Constitution, the parliament – the National Assembly and the Senate –should have at least a third of either gender. Since independence in 1963, men have dominated parliament and women and other groups have struggled for the affirmative action, leading to the amendment of the constitution to allow more women representatives by introduction of the two-thirds gender rule. Currently, out of 1883 current elective seats in the bicameral parliament and county assemblies, 172 are occupied by women, an improvement from 145 in 2013, when the elections were first held under the new constitution.

However, despite the considerable increase in women representation, it still falls far short of the mark. Priscilla Nyokabi, commissioner at the National Gender and Equality Commission, says although demonstrable progress has been made in women representation which currently stands at 25%, Kenya is still behind her neighbouring countries in the East African region. Rwanda for example, had 49 seats out of 80 occupied by women in 2018. It is against this backdrop that there have been concerted efforts for the parliament to have the two-thirds gender rule enacted.

In 2012, the Supreme Court advised the parliament to enact the gender rule in order to comply with the constitution but that didn’t happen. In 2017 again, the High Court ordered the parliament to operationalize the two-thirds gender rule and that, too, was not implemented. Attempts at achieving a compromise formula to implement the two-thirds gender rule have come to naught. The bills on the two-thirds rule have been presented for debates in parliament, but legislators have either failed to show up in parliament or vote against them whenever they were tabled in the August house, forcing the house to shelve them. One of the bills trumped was fronted by former Majority Leader, Aden Duale, who sought to have women nominated to solve the issue.

Following parliament’s failure to pass the bill, the Law Society of Kenya (LSK) wrote to the Chief Justice asking him to dissolve the parliament. At the time, the Chief Justice was receiving numerous petitions from Kenyans seeking to have the national assembly dissolved for refusing to give effect to the gender rule. All these, according to David Maraga’s advisory, informed the decision to request the president to dissolve the parliament.

While women laud the move and demand that the President dissolves the parliament as advised by the Chief Justice, a majority of male legislators remain deeply divided on the issue, with some dismissing the advisory and urging the president to ignore it, citing difficulties in its implementation, despite trying for nine years. The speakers of both the National Assembly and Senate, Mr. Justin Muturi and Mr. Ken Lusaka respectively, weigh in support of the legislators and advise seeking redress in high court. 

But for some women, the failure to enact the law is a ‘punitive measure of defiance’. Daisy Amdany, the Executive Director of Centre for Rights Education and Awareness (CREAW) said legislators do not have to worry about anything because they face no consequences for not passing the bill, if the Chief Justice does not advise the president to dissolve the parliament. Women legislators are however split on the issue. While they advocate the implementation of the two-thirds gender rule, a number of them are reluctant to support the dissolution of parliament, for fear of not being re-elected in the event it is disbanded.

Others like Gladys Wanga (Homa Bay), Millie Odhiambo (Mbita) and Uasin Gishu’s Gladys Shollei support the advisory in the interest of women empowerment. During the debate in parliament about two weeks ago, Ms Odhiambo said: “I’m willing to go home… It’s not a men vs women fight… I know people have been calling me saying don’t support, but it’s not about me…”

Even more divided on the issue, particularly on its implementation and interpretation, is the LSK. Nelson Havi, the current president of LSK, said the president has no option but to dissolve the parliament. He claims the parliament should not exist beyond 2020 and will stand dissolved irrespective of whether or not the President acts on the advisory from Chief Justice. His predecessor Ahmednassir Abdullahi has claimed the chief justice committed a ‘constitutional error’ and is guilty of ‘jurisprudential naivette’.

 “Uhuru, in line with my legal opinion, must tell Kenyans that he has taken note of Maraga’s Advice but elects to shelve it because he takes the view that the more considered views are much superior to that of Maraga’s,” argues Abdullahi.

Writing on the Kenya’s Sunday NationProf. Makau Mutua, International Human Rights lawyer and professor at SUNY Buffalo School of Law, argued that the Chief Justice “did the right thing, but in the wrong way. “As CJ, he was performing a quasi-political function as head of the third arm of the state. First, he waited too late in his tenure to drop an unexploded grenade on Kenya. His timing was bad. He is a lame duck whose voice is now muted. Second, as CJ, he should’ve widely engaged in public consultations before pulling the trigger.”

Meanwhile, the Speaker of National Assembly, Justin Muturi, suggests that the issue of the gender rule should be solved by the initiatives such as the Building Bridges Initiative, which seeks to amend the constitution. The Minority Leader, James Orengo, on his part, says the advisory is momentous and might ‘in effect help deal with the underlying basis of the legal system. “The dysfunction and paralysis in the nation put our institutions into disarray. And we have to wait for a presidential fiat. May the sovereign (people) decide.”

As Kenya is caught up in the controversy created by the Chief Justice’s advisory, the nation has developed a wait-and-see approach, while President Kenyatta says the matter is being handled by the courts.

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