LSK petitions for implementation of gender rule

A decade after promulgation of the Constitution, Parliament is yet to implement the two-thirds gender rule.

Section 27 of the Constitution requires both levels of government to ensure neither gender has more than two-thirds representation. Despite three attempts to pass the Gender Bill in Parliament, it remains a mirage.

The gender rule has remained elusive in the National Assembly, a body which has been accused of dragging its feet in enacting the requisite laws.

It is for this reason that late last month, the Law Society of Kenya (LSK) kicked-off a fresh process that seeks to compel President Uhuru Kenyatta to dissolve Parliament for failing to initiate implementation of constitutional provisions that would ensure gender balance in both levels of government.

DISSOLVE PARLIAMENT

The LSK, in a petition, asked Chief Justice David Maraga to write to the President to advise him on dissolving Parliament on grounds that no laws have been crafted to enable implementation of Section 27 of the Constitution.

The petition says it is evident that Parliament has consistently failed to fulfil its constitutional obligation of enacting the two-thirds gender rule according to Article 27(6) despite several court decisions compelling it to do so.

LSK adds that it’s the duty of Parliament to ensure it legislates the outstanding laws and failure to do so continues to expand the fault lines for violations of the Constitution.

“Parliament is in contravention of the Constitution by neglecting, refusing and/or failing to perform its constitutionally imposed obligation to realise the two-thirds gender rule, encapsulating the principle that not more than two-thirds of the National Assembly and the Senate shall be of the same gender. Parliament as currently constituted, does not meet the constitutional gender threshold and ought to be dissolved forthwith,” LSK Chairman Nelson Havi says in the petition. 

THIRD TIME

This is the third time a petition has been submitted to the CJ over the same issue.

On April 10, 2019, Margaret Toili petitioned Justice Maraga, requesting for dissolution of Parliament, but he dismissed it citing a Bill, which was in the House.

Ms Toili’s case was followed by a similar one by Stephen Owoko and John Wangai, whose bid also failed.

Currently, out of the 349 seats in Parliament, only 76 members are female representing 1/5 of the total. The Constitution says Parliament should at least have 117 female MPs, which means it falls short by 41 members. 

The Senate too, misses the mark with only 21 women owning seats instead of the 23 demanded by law. Kenya lags behind in East Africa at only 23.5 per cent of women occupying positions across government bodies.

Rwanda leads in East Africa with 61 per cent followed by Tanzania at 36 per cent, Burundi (36), Uganda (34) and South Sudan at 28.5 per cent. 

FIERCE BATTLE

To amend the scenario, women in the country have been embroiled in fierce battle with their male counterparts to have the gender rule implemented to no avail.

Its implementation has in the past, proved elusive because the Constitution failed to expressly provide for how the two-thirds ratio would be achieved.

In December 2012, the Supreme Court directed the Government to implement a progressive approach in filling the gender gap by August 27, 2015. Despite the court directive, nothing happened.

After the expiry of the 2015 deadline, the Centre for Rights Education and Awareness and the Community Advocacy and Awareness Trust sued Parliament and the Senate at the High Court for violating the law.

The lobbies said the leaders failed to enact necessary regulations that would see the two-thirds gender rule implemented.

MPs' SUPPORT

In March 2017, Justice John Mativo ruled that the bicameral House has violated women's rights to equality and freedom from discrimination. He directed both Houses to enforce the gender rule within 60 days. The order was never implemented.

Nevertheless, ten years after promulgation of the Constitution, the Gender Bill is still a mirage despite three attempts to have Parliament pass it.

A number of legislators have backed LSK’s petition.  Uasin Gishu Woman Representative Gladys Boss Shollei said she supports it because it will be wrong to allow an unconstitutional Parliament to preside over impending constitutional issues.

“When you tell us you want to implement the Constitution through the Bridging Bridges Initiative (BBI)we ask, how do you amend a Constitution you have not followed in the first place and how do you even guarantee you will follow the new law that may come our way?” posed Ms Shollei.

Nandi County Senator Samson Cherargei supports the petition seeking dissolution of Parliament for failing to heed to the two-thirds gender rule.

UNCONSTITUTIONAL PARLIAMENT

Lugari MP Ayub Savula says it will be proper if the House is dissolved for failing to comply with the Constitution.

“Let us be subjected to fresh elections so that individuals opposed to the two-thirds gender rule can be exposed and rejected by Kenyans at the ballot,” said Mr Savula.

Some rights organisations have also joined the new campaign with Crawn-Trust executive director Daisy Amdany saying women should be given what the Constitution highlights and nothing short.

“We have been fighting for the implementation of the gender rule since the promulgation of the 2010 Constitution. The Judiciary through the Chief Justice, should therefore, take his judicial authority and act on the unconstitutionality of Parliament,” she said.

Only time will tell whether the latest attempt by LSK comes to pass.