CJ tells Uhuru to send MPs home over gender rule

President Uhuru Kenyatta has been put in the spotlight after the Supreme Court recommended the dissolution of the National Assembly for non-compliance with the two-thirds gender rule, a move likely to test his commitment to the rule of law.

The advisory by Chief Justice David Maraga followed six petitions by the Law Society of Kenya(LSK), former Marakwet West MP David Sudi and Law Society of Kenya (LSK) Margaret Toili, Fredrick Mbugua, Bernhard Aoko and Stephen Owoko, urging him to advise the Head of State to dissolve Parliament for failing to pass the affirmative action legislation in accordance with the Constitution.

The CJ pointed out that Article 261 (1), read together with the Fifth Schedule, provides that the enactment of the two-thirds gender principle was among the things Parliament was to do within five years after the promulgation of the Constitution in 2010. This has not happened 10 years later.

“There is no doubt the dissolution of Parliament will cause inconvenience and even economic hardship. The fact that Kenya is in the midst of the coronavirus pandemic only exacerbates the potential impact of the decision. Yet that is the clear result Kenyans desired for Parliament’s failure to enact legislation they deemed necessary. We must never forget that more often than not, there is no gain without pain,” Mr Maraga said on Monday while recommending the dissolution of Parliament by President Kenyatta.

“Consequently, it is my constitutional duty to advise Your Excellence to dissolve Parliament under Article 261(7) of the constitution,” the CJ further said.

Section 27 of the Constitution requires both levels of government to ensure that neither gender has more than two thirds of public officers, whether elected or appointed.

Under the two-thirds gender rule, the dominant gender should only occupy 66.66 per cent of public offices. Currently, men dominate the National Assembly as only 59 out of 349 MPs are female. This means that the 290 male MPs occupy 83 per cent of available seats. In the Senate, the 47 male lawmakers account for 70 per cent of the available seats.

National Assembly Speaker Justin Muturi however criticised the CJ’s decision and defended Parliament saying it been wrongly castigated for failure to enact the relevant legislation. “More importantly, there is no express constitutional edict directed at Parliament requiring it to pass legislation to ensure compliance with the two-thirds gender principle with respect to Members of Parliament,” he said

Mr Muturi said the clamour for dissolution of the current Parliament on account of failure to enact the two-third gender legislation is at the very least, unrealistic.

“In fact, dissolution of Parliament will necessitate a by-election in all constituencies, nearly akin to a General Election. Given the expensive nature of elections as exemplified by the last 2017 General Elections, there does not appear to be any good reason for insisting on dissolution of Parliament,” he said.

Mr Muturi claimed that various electoral laws may need to be amended for more women to be elected to Parliament.