Four years after former Attorney-General Githu Muigai warned that Parliament could face possible dissolution over failure to implement the two-third gender rule, the country was on Monday staring at a mini-General Election after Chief Justice David Maraga triggered the Constitution’s most severe punishment — dissolution of the House.
In a letter to President Kenyatta, Mr Maraga described the failure by Parliament to enact the law providing that no elected and appointed position should have more than two-thirds representation from one gender, as a form of impunity that could only be cured by sending the MPs home.
“For over nine years now, Parliament has not enacted the legislation required to implement the two-thirds gender rule, which, as the Court of Appeal observed, is clear testimony of Parliament’s lackadaisical attitude and conduct on this matter. Consequently, it is my constitutional duty to advise Your Excellency to dissolve Parliament under Article 261 (7) of the Constitution,” the Chief Justice said in his letter to the Head of State on Monday.
In his September 2016 letter written to Speaker of the National Assembly Justin Muturi and his then Senate counterpart Ekwee Ethuro, the former AG had warned: “The legitimacy of the incoming Parliament post the 2017 General Election could be called into question where the two thirds gender principle is not attained with all the attendant risks and consequences.”
The House has twice tried and failed to enact the law, with the latest attempt on February 27, 2019 flopping after the proponents of the Bill could not raise the requisite quorum of 233 MPs to vote.
“If Parliament fails to enact legislation in accordance with an order under clause 6 (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament,” Article 261 (7) of the Constitution says.
While acknowledging that his advice to the President will lead to a crisis as well as economic hardship exacerbated by the Covid-19 pandemic, Mr Maraga asked Kenyans to bear with him.
“This 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 pain without gain,” Mr Maraga said.
In his 10-page letter, Mr Maraga said the pain the dissolution of Parliament will cause was necessary “if only to remind the electorate to hold their parliamentary representatives accountable.”
“Let us endure pain, if we must, if only to remind ourselves, as a country, that choices, and particularly choices on constitutional obligations, have consequences. Let us endure pain if only to remind ourselves that, as a country, being a democracy that has chosen to be governed by the rule of law, we must say no to impunity and hold everyone accountable for their actions,” Mr Maraga said.
The man who led the team that wrote the 2010 Constitution, Senior Counsel Nzamba Kitonga, said the President’s hands had only one way to act in the presence of the CJ’s letter.
“As it stands, and in the legal parlance of a mandatory provision that the President shall dissolve Parliament upon the transmission of the Chief Justice’s letter, we are staring at dissolution of Parliament, which would occasion mass by-election,” said Mr Kitonga, who chaired the Committee of Experts that drafted the supreme law.
Arguing that the use of the word ‘shall’ as opposed to ‘will’ in the wording of Article 261, which allowed the CJ to give the advice yesterday, “means that it is mandatory that the said act happens” once the advice has been given by Mr Maraga.
Constitutional standpoint
“As to whether the President can follow through on the CJ’s recommendation is another matter,” Mr Kitonga said.
The Senior Counsel argued that the only leeway available for the Executive and the President is to seek a stay order of the advice to dissolve Parliament if a case is filed in the High Court challenging the order.
Senior Counsel James Orengo, who is also the Senate Minority Leader, described the CJ’s letter in glowing terms.
“CJ Maraga’s advice to the President to dissolve parliament is momentous. Probably the most significant and historic from a constitutional standpoint. How we apply foundational principles and values of the rule of law and constitutionalism is now the big test,” Mr Orengo said.
The journey to force Parliament to enact the two-third gender rule started on December 11, 2012 when the Supreme Court, in an advisory opinion, ruled that a progressive realisation of the rule was envisioned and ordered Parliament to enact the legislation by August 27, 2015.
A case was filed at the High Court to compel the meeting of this deadline, and the court ordered the tabling of the relevant Bill within 40 days from June 26, 2015. That, too, was ignored.
On March 29, 2017, the High Court made another order, requiring the implementation of the required legislation within 60 days of that ruling.
Parliament then appealed this High Court decision and on April 5, 2019, the Court of Appeal pronounced itself, dismissing the appeal and ordering Parliament to enact the law.
Given this dilly-dallying, six Kenyans filed petitions to dissolve Parliament, including the Law Society of Kenya, former Marakwet West MP David Sudi, Margaret Toili, Fredrick Gichanga, Aoko Bernard, as well as a joint one by Stephen Owoko and John Wangai.
But in a swift response yesterday, Mr Muturi faulted Mr Maraga for his advice, saying, Parliament had been turned into a punching bag.
The Speaker argued that, dissolving Parliament is an expensive affair as it would lead to by-elections in all constituencies, and “there does not appear to be any good reason for insisting on dissolution of Parliament.”
Even if Parliament were to be dissolved and all MPs sent home, Mr Muturi argued, there was no guarantee that the elections will be gender-complaint.
He argued that, “high cost of campaigns, electoral violence and cultural attitudes” which might hinder such an achievement, have not been addressed.
“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. There is nowhere in the current Constitution that the onus is placed on Parliament as an institution to ensure there is gender parity in State organs,” he said in a statement.
While there were clear provisions for the attainment of the two-thirds gender rule in the county assemblies by requiring appointment of either gender to achieve the two-thirds rule upon election, Mr Muturi said there was no such provision for members of Parliament. If Kenya were to nominate women to meet the rule in the current Parliament, Mr Muturi said, the number would be as high as 100.
“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,” Mr Muturi said.
Mr Muturi added that the two-thirds gender principle “potentially violates the sovereign will of the electorate at least to the extent that such legislation will demand top-ups or nominations of women.”
“This is akin to fundamentally skewing or altering the sovereign will of the people who go to the ballot to elect their representatives in a constitutional democracy,” Mr Muturi argued.
Mr Muturi also argued that the orders that would precipitate Parliament’s dissolution were only relevant to the 11th Parliament, and not the current 12th.
Mr Maraga dismisses this contention, saying, the order was made against Parliament as an institution.
