The High Court has quashed a September 2020 advisory opinion by former Chief Justice David Maraga calling for the dissolution of Parliament over the failure to enact legislation to implement the two-thirds gender principle, declaring the opinion unconstitutional.
A five-judge bench noted that Parliament had made several attempts to implement the gender rule, including pursuing constitutional amendments aimed at giving effect to the principle.
The judges noted that none of the proposed constitutional amendments succeeded, either because they lacked quorum or failed to attain the required threshold for passage.
The court further held that a March 2017 High Court judgment directing Parliament to enact the law within 60 days remains valid.
“For this reason, it may still be transmitted to the Attorney-General and the Parliament,” the court said, adding that Parliament and the Attorney-General would determine the necessary steps towards enactment of the law and that time would begin running from the date of transmission.
“For these reasons, the evidence that we have given, we allow the petition and the advisory opinion by the Chief Justice Advisory dated 21 September 2020 is hereby declared unconstitutional,” said the court.
Former Chief Justice Maraga issued the advisory opinion on September 21, 2020, advising then President Uhuru Kenyatta to dissolve Parliament for failing to enact legislation giving effect to the two-thirds gender principle.
The advisory was subsequently challenged by Parliament and the Executive. However, several parties, including former MP David Sudi, the Law Society of Kenya (LSK), Leina Konchellah and Mohsen Abdul, supported calls for the dissolution of Parliament.
The Constitution requires the State to take legislative and other measures to ensure that no more than two-thirds of members of elective and appointive bodies are of the same gender.
Under the Fifth Schedule of the Constitution, Parliament was required to enact the necessary legislation within five years of the promulgation of the Constitution. However, in a 2012 advisory opinion, the Supreme Court ruled that implementation of the principle would be achieved progressively.
In his advisory opinion, Maraga noted that several attempts had been made to pass the legislation and that multiple petitions had been filed seeking the dissolution of Parliament for failing to comply with the Constitution.
Former Chief Justice David Maraga.
Photo credit: File | Nation Media Group
He said the Speakers of Parliament had informed him that two Bills aimed at implementing the principle were still pending before Parliament.
More than 10 petitions had urged President Kenyatta to dissolve Parliament for failing to enact legislation in accordance with Article 27(3), read together with Articles 81(b) and 100 of the Constitution.
“Yet that is the clear result Kenyans desired for Parliament’s failure to enact legislation they deemed necessary. Consequently, it is my constitutional duty to advise Your Excellence to dissolve Parliament under Article 261(7) of the constitution,” Maraga stated in the advisory.
The dispute traces its roots to a March 2017 decision by then High Court Judge John Mativo, who gave Parliament 60 days to enact legislation complying with the constitutional requirement.
The judge ruled that after the lapse of the 60 days, any Kenyan would be at liberty to petition the Chief Justice to advise the President to dissolve Parliament.
“I am satisfied that the first and second respondents have failed, refused and or neglected to perform their constitutional mandate prescribed in the Constitution,” Justice Mativo ruled.
Justice John Mativo.
Photo credit: File | Nation Media Group
The case was filed by the Centre for Rights Education and Awareness (CREAW) and Community Advocacy and Awareness Trust (CRAWN Trust), which sought a declaration that Parliament’s failure to enact legislation implementing the two-thirds gender principle violated women's rights and the Constitution.
The organisations argued that women had historically suffered marginalisation and exclusion from electoral and political processes, resulting in inadequate representation and participation in political decision-making.
They contended that the 2010 Constitution sought to remedy this historical injustice by establishing mechanisms to promote inclusive participation of marginalised groups, including women, in electoral and political processes.
In its 2012 advisory opinion, the Supreme Court directed the State to take legislative and other measures, including affirmative action programmes, to address disadvantages suffered by marginalised groups. By a majority decision, the judges said the mechanism should be in place on or before August 27, 2015.
However, the deadline passed without Parliament enacting the necessary legislation. An extension of one year was subsequently granted, but no law was enacted.
In Friday's decision, the High Court held that before the enforcement mechanism under Article 261 could be triggered, it must be demonstrated that every procedural step had been undertaken in strict compliance with the Constitution.
“We agree with the counsel that the applicable rules must be complied with by those who seek justice in the courts,” the judges said.
