House non-compliance with gender principle doesn’t make it unlawful

National Gender and Equality Commission chairperson Winfred Lichuma addresses the media on April 19, 2017 at Laico Regency Hotel in Nairobi. House Majority Leader Aden Duale announced that when Parliament resumes the gender Bill would be tabled. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • The method of achieving this is clearly spelt out by the Constitution as legislative and other measures.
  • The Constitution does not set a time frame for enactment of any legislation under Articles 27(8) and 81(b).

Thanks to High Court Judge John Mativo and President Uhuru Kenyatta, the controversial debate on the two-thirds gender principle is once again at the centre stage.

First, on March, 29, 2017, Justice Mativo ordered Parliament to enact legislation to implement the two-thirds gender principle within 60 days and, in default, the petitioners in the case or any other person shall be at liberty to petition the Chief Justice to advise the President to dissolve Parliament.

Secondly, in the wake of the judgement, President Kenyatta spoke in support of the gender principle.

GENDER BILL

Consequently, House Majority Leader Aden Duale announced that when Parliament resumes next week, the gender Bill would be tabled.

However, chances of a constitutional amendment passing through at this stage of the electoral calendar are extremely slim.

Accordingly, all the stakeholders, beginning with lawyers, must start grappling with the question on whether the 11th Parliament will be unlawful if the gender principle is not implemented during the August, 2017 general election.

In my view, the solution to the gender principle quagmire remains elusive because lawyers and human rights activists have deliberately misinterpreted the Constitution to give women additional seats cheaply.

LEADERSHIP POSITION
The composition of the National Assembly and the Senate as set out in Articles 97 and 98 does not support the popular notion that Parliament would be unlawfully constituted unless the membership of National Assembly consists of 117 women and the Senate has 23 women members.

In truth the composition of Parliament is valid if we have 54 women and the Senate has 18 women members.

The point here is that there is a difference between a right and a principle.

In real terms, women have a right to 54 seats in the National Assembly but not a minimum of 117 seats in the ideal situation envisaged by the gender principle.

Let me explain. On the one hand, Article 81(b) of the Constitution provides that the electoral system shall comply with the principle that no more than two-thirds of the members of elective public bodies shall be of the same gender.

IMMEDIATE APPLICATION

On the other hand, Articles 27(8) provides that “the State shall take legislative and other measures to implement the principle that no more than two-thirds of the members of elective or appointive bodies shall be of the same gender”.

In Advisory Opinion No. 2 of 2012, a majority of the Supreme Court held that the general principle set out in Articles 27(8) and 81(b) of the Constitution is not an enforceable right capable of immediate enforcement.

Accordingly, the Court majority ordered that legislative measures should be taken by August 27, 2015.

Five years after the Supreme Court declared the law, both the Attorney General and Parliament have not figured out a solution to the two-thirds gender conundrum.

There are three reasons for this. First, after the Constitution provided women 54 exclusive seats in the National Assembly and 18 in the Senate, the top-up to comply with the gender principle was supposed to come out of the 290 elected seats in the National Assembly and the 47 elected seats in the Senate.

REPRESENTATION

The method of achieving this is clearly spelt out by the Constitution as legislative and other measures.

Unfortunately, instead of coming up with legislative (statutory) and other measures, both the Attorney General and the Legal Affairs Committee of the National Assembly have wrongly assumed that a constitutional amendment is the mechanism to realise this principle.

This solution requires creation of special seats, which will considerably increase the size and cost of Parliament.

Secondly, the popular belief that the Constitution imposed on Parliament a duty to implement the gender principle within five years after its promulgation is based on legal quicksand.

In truth, Article 100 of the Constitution required Parliament to enact legislation to promote representation in Parliament of women, persons with disabilities, youth, ethnic minorities and marginalised communities within five years after its promulgation.

The Constitution does not set a time frame for enactment of any legislation under Articles 27(8) and 81(b).

DISSOLUTION OF PARLIAMENT
Strictly speaking there is nothing fundamentally wrong or offensive about the deadline set by the Supreme Court.

On the contrary, what is wrong is my third point, namely the consequences of non-compliance with that deadline.

Under Article 261(7) the Chief Justice is enjoined to advise the President to dissolve Parliament if it fails to enact any particular legislation within the time specified in the Fifth Schedule of the Constitution.

Given that the Fifth Schedule does not specify a deadline for the legislation envisaged by Article 27(8) it is obvious that Article 261(7) on dissolution of Parliament does not apply to non-compliance with the Supreme Court deadline.

Regrettably, the judgement of Justice Mativo is based on the erroneous understanding that Parliament’s non-compliance with the Supreme Court deadline of August 27, 2015 renders it susceptible to dissolution pursuant to Article 261(7).

NO AUTHORITY

In concrete terms what this means is that the order of Justice Mativo is an empty threat.

Finally, the threat of dissolution in Article 261(7) could only apply to the Tenth Parliament because under the former Constitution, which applied until March, 2013 the President had power to dissolve Parliament.

However, after that dissolution provision expired, the President has no legal basis to act on any advice by the Chief Justice to dissolve Parliament.

The writer is a constitutional lawyer. [email protected]