A High Court ruling has reopened the debate on the two-thirds gender principle after judges threw out a 2020 advisory by former Chief Justice David Maraga that urged the President to dissolve Parliament for failing to enact the required law.
In a judgment delivered by a five-judge bench, the court found that the advisory issued on September 21, 2020 could not stand, noting that Parliament had made efforts to address the constitutional requirement through proposed laws and constitutional amendments, even though those initiatives ultimately failed.
The judges observed that some of the attempts collapsed due to lack of quorum while others did not secure enough support to pass.
At the same time, the court affirmed that a March 2017 High Court decision directing Parliament to pass legislation implementing the two-thirds gender principle remains active and enforceable.
“It may still be transmitted to the Attorney-General and Parliament,” the court said, adding that time would begin running from the date of transmission.
The judges concluded: “For these reasons ... the advisory opinion by the Chief Justice dated September 21, 2020 is declared unconstitutional.”
The advisory had been issued after years of unsuccessful attempts to enact legislation required under the Constitution to ensure that no more than two-thirds of members of elective and appointive bodies are of the same gender.
Maraga had advised former President Uhuru Kenyatta to dissolve Parliament, arguing that lawmakers had failed to fulfil a constitutional obligation despite repeated opportunities to do so.
That recommendation was challenged in court by Parliament and the Executive. However, several groups, among them the Law Society of Kenya, backed the calls for Parliament's dissolution.
The Constitution obligates the State to take legislative and other measures to achieve compliance with the gender principle. The Fifth Schedule required Parliament to enact the necessary legislation within five years after the Constitution came into force.
In a 2012 advisory opinion, however, the Supreme Court held that implementation of the principle would be realised progressively.
While issuing his 2020 advisory, Maraga noted that several legislative efforts had been undertaken and that petitions had been lodged seeking the dissolution of Parliament over its failure to comply with the Constitution.
He further stated that the Speakers of the National Assembly and Senate had informed him that two Bills aimed at implementing the gender requirement were still pending before Parliament.
More than 10 petitions had been submitted urging President Kenyatta to dissolve the House.
“That is the clear result Kenyans desired for Parliament’s failure to enact legislation they deemed necessary. It is my constitutional duty to advise Your Excellency to dissolve Parliament under Article 261(7) of the Constitution,” Maraga told Kenyatta.
The matter traces back to a case filed by the Centre for Rights Education and Awareness and the Community Advocacy and Awareness Trust.
The two organisations sought a declaration that Parliament's failure to enact legislation implementing the gender principle amounted to a violation of women's rights and the Constitution.
They argued that women had for many years been excluded and marginalised in electoral and political processes, resulting in low representation and limited participation in leadership and decision-making structures.
According to the organisations, the Constitution was intended to correct those historical inequalities by creating avenues for the inclusion of marginalised groups in political and electoral affairs.
In March 2017, Justice John Mativo ruled in their favour and gave Parliament 60 days to enact the required legislation.
The judge further held that once the deadline expired, any Kenyan would be free 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 said.
The Supreme Court's 2012 advisory opinion had also directed the State to take legislative and other measures to address disadvantages faced by marginalised groups.