Maraga’s advice may trigger end to gender rule rigmarole

On September 21, 2020, Chief Justice David Maraga unleashed a legal thunderbolt by advising the President to dissolve both the National Assembly and the Senate for failure to pass the two-thirds gender legislation.

The country is still reeling from his judicial salvo.

There are two sets of constitutional provisions touching on gender equity that contradict each other.

These are Articles 27(3), (4) and 100, which bar discrimination on account of gender consideration.

More explicitly, Article 27(8) declares: “(T)he 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.”

Article 81(b) further provides that the electoral system must comply with the two-thirds gender principle.

The above constitutional provisions clearly lay the basis for gender parity in parliamentary representation.

However, Articles 97 and 98, which provide for the membership of both the National Assembly and the Senate, do not guarantee the two-thirds gender rule.

Gender rule

Assuming that no female MP is elected in the National Assembly, in order to fulfil the gender rule, some 70 MPs on top of the 47 county female MPs would have to be elected.

If no woman is elected to the Senate, the deficit would be five positions on top of the 18 nominee senators.

Clearly, the drafters of the 2010 Constitution failed to harmonise the two sets of gender provisions.

The Fifth Schedule itemises legislation that must be enacted by Parliament so as to enforce the Constitution.

Although the gender parity provisions are not mentioned in the list on the bill of rights or legislature, they are, arguably,  covered in the general language of any other legislation required by the Constitution, which should have been legislated within five years.

Essentially, two parallel strategies have been deployed since the passage of the 2010 Constitution to correct the gender representation gap.

Citizens, the civil society and the Law Society of Kenya have pursued court action and petitioned the Chief Justice. In response, Parliament has attempted passing of constitutional bills.

Notably, however, the 2010 Constitution did fulfil the two-thirds gender rule in terms of the county assembly.

Articles 177(1)(b) and 197 guarantee that no more than two thirds of the membership of the assembly should be of the same gender.  Such formula was not adopted for Parliament.

Gender parity

Hon Duale introduced two bills to deal with the gender question in 2015 and 2018.

Both Bills sought to cure the gender parity gap by borrowing the language of Article 177(1)(b) on county assembly membership.

 On the two occasions, Parliament failed to marshal two-thirds support.

Both Sijeny and Chepkong’a also proposed amendments that aborted.

In 2012, the then Attorney-General sought an advisory opinion from the Supreme Court on how to deal with the gender rule.  The majority favoured gradual enforcement of the gender principle but directed Parliament to legislate it by August 27, 2015.

Returned to court

Parliament failed to do so.

Another court case by the Centre for Rights Education &Awareness (CREAW) followed in 2015.

The High Court ordered the Attorney-General and the Commission on Implementation of the Constitution to prepare relevant legislation under Article 261(6)(b) for onward transmission to Parliament within 40 days.

Parliament did not comply.

CREAW returned to court in 2016 and Parliament was ordered to pass the necessary gender legislation within 60 days. An appeal by Parliament in the Court of Appeal was dismissed.

At this stage six petitions were lodged demanding that the Chief Justice should advise the President to dissolve Parliament.

By now Parliament had defied four court orders.

Article 261(7) states as follows: “If Parliament fails to enact legislation in accordance with an order under clause 6(b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.”

Given the events described above, the Chief Justice has exercised his constitutional duty under Article 261(7).

The ball is still in the President’s court. In legal parlance, the word “shall” carries a mandatory connotation.

The decision by the Chief Justice buttresses the primacy of rule of law and constitutionalism.

Further, he states: “We must never forget that more often than not, there is no gain without pain.”

He believes legislators’ opposition to gender equality is based on male cultural resistance and chauvinism.

In response to the Chief Justice, the Speaker of the National Assembly rebutted, inter alia, that passage of laws is not the sole responsibility of Parliament but the entire state machinery, which must share the duty to guarantee gender parity.

The Speaker also observed that the constitutional provisions on electoral gender equity in relation to Parliament are not as clear as they are for the county assembly Articles 177 and 197.

He was of the opinion that Article 261 (1) does not cover the gender equity principle for members of Parliament.

Further, the Speaker identified the problem of prohibitive cost of fresh elections and lack of guarantee they would be “gender compliant”.

 He urged that focus on the imperative to deal with “the factors that have contributed to few women being elected into high office such as high cost of campaigns, electoral violence and cultural attitudes...”

Breathing space

As a possible solution to non-observance of the gender electoral principle, the Speaker proposes the two-thirds gender rule can be achieved through the Building Bridges Initiative (BBI).

If the two-thirds gender rule is offered as part of BBI non-referendum constitutional proposals, Parliament is likely to pass such proposals so as, in the first instance, to avoid the pain of dissolution.

A petition challenging the Chief Justice’s advice to the President has been instituted at the High Court.

Therefore, the President has breathing space to manoeuvre.  In the meantime, parliamentarians are fraught with anxiety.

Chief Justice Maraga’s advice may be the ultimate trigger for ensuring the gender parity rule finally becomes law.

Former Chief Justice Mutunga, in a dissenting opinion, had recommended that the gender rule needed to be enforced with immediate effect, as opposed to progressively.

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