Dissolution: Gender rule returns to haunt House
Mercy Mwai and Anthony Mwangi
Members of Parliament may become the biggest casualties of the 2010 Constitution if Chief Justice David Maraga commences the process of dissolving Parliament following its failure to enact the two-thirds gender rule.
The fear comes in the wake of a decision by the Law Society of Kenya President Nelson Havi to move to the Supreme Court seeking to have the National Assembly dissolved for failing to enact the rule.
Article 81 (b) of the Constitution reads that not more than two-thirds of the members of elective public bodies shall be of the same gender.
Yesterday, MPs were considering three options to avert the possibility of parliament being dissolved, a move which will render the 349 elected and nominated legislators jobless.
One of the options is to invoke article 261 (b) of the constitution to extend the period within which to enact the contentious clause.
The second option, according to the vice chairman of the National Assembly’s Justice and Legal Affairs Committee Otiende Amollo, is to top up the number of members of the disadvantaged gender in various public bodies to meet the two thirds threshold.
The third option, which is considered the worst-case scenario, is for the country to hold a referendum to remove altogether the contentious clause.
Speaking on Tuesday, National Assembly Speaker Justin Muturi captured the magnitude of the dissolution possibility warning that the National Assembly had squandered the opportunity to enact the contentious clause.
Muturi warned MPs that they may be forced into early elections should the CJ advise the President to dissolve parliament.
The Speaker said the possibility of the CJ advising the President to dissolve parliament is real, making the twelfth parliament term the shortest in the country’s history.
“We have as parliament done what is humanly possible to implement the rule without success,” Muturi told members of House leadership attending a workshop at a city hotel.
Minority leader in the National Assembly John Mbadi, however, downplayed the dissolution fears, saying such action would be too drastic.
Drastic action
“Chief Justice David Maraga cannot take the drastic action of advising the President to dissolve the August House, he cannot dare,” he stated.
Parliament has attempted to pass the Bill for a record five times without success.
“We are not worried, nobody can dare dissolve parliament, the consequences are too dire,” said Mbadi.
Amollo, however, warned that chances of the CJ advising the President to dissolve Parliament are real and imminent.
“As it stands now, parliament is now null and void and whatever business that has been legislated is null and will not count. It is that serious,” Amollo told the stunned members.
He added that such eventuality will come with “serious and far reaching” challenges in terms of constitutionality.
By dissolving parliament, it will imply that all the 84 bills passed by the 12th Parliament will be invalidated.
“By annulling these pieces of legislation, we will be throwing the country into a constitutional crisis,” Amollo explained.
The chairman of the Constitutional Implementation Oversight Committee (CIOC), Jeremiah Kioni, warned that dissolving parliament will be a recipe for a serious crisis.
“The two-third Gender rule is not implementable and I do not expect the CJ to send us home over such a matter,” Kioni said.
Justice and Legal Affair Committee chairman Muturi Kigano on his part accused the CJ of being an impediment in the implementation of the gender rule and wondered why he would be the same one to advise for its dissolution.
Contentious article
Amolo who was a member of the committee of experts who drafted the contentious piece of legislation in the 2010 Constitution, said there is need for the matter to be dispensed now adding that dissolving parliament will not help since the new parliament will face similar challenges.
According to Amollo, the only way the country can escape the juggernaut is by deleting the contentious article through a referendum.
He said by dissolving parliament the country will not be solving the impasse adding that in the event of fresh elections, there was a likelihood for Kenyans electing even more men than women.
“There is a formula that has been availed that has provided a solution to the implementation of the contentious rule.
There is no way one can take away my right on who to vote for,” noted Kioni.Kioni said the drafters of the Constitution adopted the two-thirds gender rule to stabilise the country, which was then in the mood for change.
Majority leader Amos Kimunya, however, dismissed Havi as a busy body out to make a name which was likely to throw the country into a constitutional crisis.
“There are some noises being made outside there by somebody calling himself a president of a society that he can dissolve parliament, let us see if he can do that,” Kimunya sarcastically said in reference to Havi.
Homa Bay Town MP Peter Kaluma warned that nobody can have the audacity to recommend the dissolution of parliament, saying as politicians they will not allow it.
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 rule, the dominant gender should only occupy 66 per cent of public offices. Currently, men dominate the National Assembly as only 59 out of 349 MPs are female.
There have been four attempts by the National Assembly to enact the Gender Bill with the most recent one being on February 27 last year.
Parliament has failed to enact it on four occasions— three attempts by the National Assembly and one by the Senate.
Gender principle
MPs have rejected attempts to pass the bill that would have seen the achievement of gender principle within the first year after the promulgation of the constitution on grounds that the new provisions would result in a bloated parliament which would add to the heavy taxpayer burden.
The most recent push to have it passed was in 2019 during debate on the Constitution of Kenya (Amendment) Bill 2018 but was defeated due to lack of quorum after only 174 out of the 233 MPs required to vote turned up in the National Assembly.
Failure to pass the bill followed a postponement of the vote on the same bill in 2018 by the then Leader of Majority Aden Duale, due to lack of quorum.
A similar attempt to have the bill passed in November 2016 failed after it faced a similar quorum hitch in the National Assembly derailing the bill by then chairman of the Justice and Legal Affairs Committee Samuel Chepkong’a.
An attempt by the senate in February 2017 through a bill sponsored by the then nominated senator Judith Sijeny failed because the House could not get 45 members to vote for it.
The failure by parliament to pass the two thirds gender rule comes against the backdrop of various judgments issued by the courts in a bid to have the principle passed.
In December 2012, the Supreme Court directed the government to come up with ways on how to fill the gender gap five years after the promulgation of the 2010 Constitution.
But despite the Supreme Court’s direction and subsequent filing of a petition by the Centre for Rights Education against Parliament to implement the gender principle, this has not been possible.
The failed attempts to pass implement the two thirds gender rule comes despite in March 2017, High Court judge John Mativo ruling that if parliament failed to enact the gender principle by June that year, anyone could petition the Chief Justice to advise the President to dissolve Parliament.
His ruling was then supported by another one issued in 2015 by High Court Judge Mumbi Ngugi, who ordered the Attorney-General and the Commission for the Implementation of the Constitution to prepare and table a bill for legislation.
