Okiya Omtatah case on gender rule decision dismissed
Activist Okiya Omtatah in court.
What you need to know:
- Activist said Attorney General asked wrong question of ‘when’ instead of ‘if’ it applied to MPs.
- Koome-led bench says he has no capacity to question an advisory opinion of 2012.
The Supreme Court has dismissed a request by rights activist Okiya Omtatah seeking review of an advisory opinion rendered nine years ago on implementation of the gender rule in elective seats.
The Constitution stipulates that either gender should not constitute more than two thirds of the membership of the National Assembly and the Senate.
In the contentious ruling that the activist wanted to be set aside, the Supreme Court held that the two-thirds gender rule required progressive implementation.
On December 11, 2012, the Supreme Court, then led by Chief Justice Willy Mutunga (retired), also advised Parliament to enact the required law on or before August 27, 2015.
But Mr Omtatah and Mr Wycliffe Gisebe wanted the findings and holding to be reviewed, varied and set aside, a move that would have saved Parliament from potential dissolution for failure to enact the gender rule.
They said then-Attorney General Githu Muigai misled the Supreme Court by mistaking the gender principle for gender rule.
They also argued the Attorney General (AG) was wrong by asking the question of “when” and not “if” the gender rule applied to the composition of Parliament.
The apex court dismissed the request and ruled that Mr Omtatah and Mr Gisebe lack the capacity to file the application.
The five-judge bench, led by Chief Justice Martha Koome, held that the activists were not parties to the proceedings that led to the advisory opinion, hence could not request a review or variation.
“We do find that the applicants do not fall within the categories contemplated under Article 163(6) of the Constitution; therefore, they do not have locus standi to seek a review of orders issued by this court in the advisory opinion,” ruled the court, allowing an objection raised by AG Kihara Kariuki.
Article 163(6) of the Constitution grants the Supreme Court the authority to issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government.
Other judges on the bench were Deputy CJ Philomena Mwilu and justices Mohamed Ibrahim, Njoki Ndung’u and Isaac Lenaola.
In urging court to declare the decision unconstitutional, and therefore, invalid, null and void, the pair contended that the advisory opinion was irregularly rendered as similar disputes were at the High Court at the time.
“When the Supreme Court deals with a reference for an advisory opinion, it is not supposed to ‘hijack’ or remove any matter from the regular court processes, as it would amount, in this particular case, to the encroachment on the jurisdiction and function of the High Court,” they said.
The dispute in question concerned whether or not the gender quotas in Articles 27(8) and 81(b) of the Constitution were applicable to the National Assembly and the Senate immediately as of March 4, 2013, or progressively at a later date.
AG Kihara Kariuki, in fighting the activists’ request for review, said the application was bad as it was not based on any specific rules of procedure and was not hinged on any substantive proceedings before the apex court.
“The application is framed as one invoking an original jurisdiction of the court to depart from its previously issued advisory opinion, which jurisdiction does not exist in law,” he stated.
“It is constitutionally impermissible for a party who lacks legal standing to seek the Supreme Court’s advisory opinion to seek a reconsideration of the court’s advisory opinion through an amorphous application.”
The contentious advisory opinion, plus Parliament’s failure to enact a law to give effect to the two-thirds gender rule, triggered petitions at the High Court that sought to compel the lawmakers to perform the duty.
Other six petitions were filed at the Office of the Chief Justice urging the CJ to advise the President to dissolve Parliament. In October 2020, then-Chief Justice David Maraga wrote to President Uhuru Kenyatta advising him to dissolve the house according to Article 261 of the Constitution.
