A petition that is seeking to compel President William Ruto to dissolve Parliament over failure to implement the two-thirds gender rule has been forwarded to Chief Justice Martha Koome for assignment to a three-judge bench.
This is after High Court judge Lawrence Mugambi found the constitutional issues raised in the case were similar to those contained in nine other petitions filed in 2020 by different individuals and entities over the same subject.
“A perusal of the instant petition reveals that it is brought against the Speaker of the National Assembly, Speaker of Senate and the Attorney General for the failure to implement the two-thirds gender rule given the results of August 2022 General Election. A study of the other petitions referenced to also reveal that the dominant issue in the said petitions is Parliament’s failure to implement the two-thirds gender rule despite the persistent call to do so in line with the Constitution,” said the judge.
Retired Chief Justice David Maraga.
Photo credit: File | John Njoroge | Nation Media Group
The petition is pushing for President Ruto’s adoption of retired Chief Justice David Maraga's 2020 advisory to former President Uhuru Kenyatta for the dissolution of Parliament.
The case, which was filed by Margaret Toili, Eddah Marete and Agnes Ndonji in 2022, is targeting the current 13th bicameral Parliament on the grounds that Mr Maraga’s advisory was not limited to the 12th Parliament.
Justice Mugambi has forwarded the case to Ms Koome for assignment to a bench that is dealing with the consolidated case of nine other petitions filed previously over the same subject.
He made the decision following an application by the Speakers of the National Assembly and Senate asking for the consolidation of the petitions because all stem from Mr Maraga’s advisory opinion dated September 21, 2020.
“In my view, there is an enduring legal question that characterises all these petitions, and this is the failure by Parliament to comply with the two-thirds gender rule. This question, unless resolved, will keep on recurring with every Parliament that comes up after every general election, hence it cannot plausibly be argued that it is a matter limited to the present Parliament,” said Justice Mugambi.
The judge noted that the underlying questions of law in the collective whole of all the petitions were common, save for the fact upon which the current Petition and the other petitions are based, which is differentiated by time.
The other petitions were urging the dissolution of the last Parliament, whose term ended in August 2022, while the instant petition targets the dissolution of the present Parliament.
Justice Lawrence Mugambi at the Milimani Law Courts on September 20, 2024.
Photo credit: Wilfred Nyangaresi | Nation Media Group
Mr Mugambi observed that the issue of dissolution of parliament over failure to implement the gender parity rule is a fundamental constitutional question that has occupied the public sphere for a long time now.
“There is need for an interpretive solution to be provided to guide the country hence it cannot be argued that it lapsed when the last Parliament ended its term,” he stated.
“It is an undeniable constitutional issue that not only needs to be resolved in relation to the present Parliament but every other Parliament to guide the nation and forestall repeated litigation on the same constitutional question. The previous petitions cannot therefore be said to be moot in relation to the present petition,” said Justice Mugambi.
The three activists want MPs and senators sent home for not adhering to the two-thirds gender rule. Ms Toili pointed out that their Petition was challenging the constitutionality of the 13th Parliament in view of the lack of compliance with the gender parity rule.
They had opposed the consolidation of the case, arguing that the move would delay the determination of their case and the implementation of the gender parity rule.
“Dwelling on the past Petitions is what has led to the dragging of the implementation of the two third gender rule and this must stop once this Petition has been heard and determined which will supersede all those petitions. Consolidation at this late stage would prejudice the Petitioners by causing unjustified delay and confusion,” argued Ms Toili.
However, the judge allowed the application after finding that the petitions raise common questions of law and arose from the same transaction.
Mr Maraga’s advisory was due to Parliament’s failure to enact legislation on the two-thirds gender rule in line with Article 27(3) as read with Article 81(b) and 100 of the Constitution. The alleged failure led to the issuance of four court orders on the matter.
The petitioners are also seeking an order directing the Registrar of Political Parties to ensure all political parties presenting members for nominations or elective positions adhere to the two-thirds gender rule for the achievement of gender balance as contemplated in the Constitution.
