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Parliament had an obligation to pass laws to implement the 2/3 gender rule
Introduction
The two-thirds gender rule is a constitutional requirement in Kenya aimed at ensuring that no more than two-thirds of the members of elective or appointive bodies are of the same gender. This principle is enshrined in the 2010 Constitution of Kenya, specifically under Articles 27(8) and 81(b). Despite the clear constitutional mandate, the Kenyan Parliament has struggled to pass the necessary legislation to implement this rule. This has led to significant legal and political challenges, including court rulings and advisories from the Chief Justice.
Table of Contents
Constitutional Provisions
Legislative Attempts and Failures
Judicial Interventions
Political Implications
Relevant Case Laws
Conclusion
TLDR
1. Constitutional Provisions
The two-thirds gender rule is primarily anchored in the following constitutional provisions:
Article 27(8): This article mandates that the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.
Article 81(b): This article stipulates that the electoral system shall comply with the principle that not more than two-thirds of the members of elective public bodies shall be of the same gender.
These provisions were designed to promote gender equality and ensure fair representation of both genders in public offices.
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2. Legislative Attempts and Failures
Since the promulgation of the 2010 Constitution, there have been several attempts to pass legislation to give effect to the two-thirds gender rule. However, these attempts have been met with resistance and have ultimately failed.
Key Legislative Attempts:
Constitutional Amendment Bill (No. 4) of 2015: This bill sought to ensure that the National Assembly and the Senate would comprise a membership that is not more than two-thirds of either gender. The bill was rejected by the National Assembly on 28 April and 5 May 2016.
Subsequent Bills: Parliament has tried, but failed, on multiple occasions to pass similar bills. The main argument against these bills has been that guaranteeing the two-thirds gender rule would be equivalent to guaranteeing the result of a competition, which some legislators argue is impractical.
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3. Judicial Interventions
The failure of Parliament to enact the necessary legislation has led to several judicial interventions:
Key Judicial Interventions:
High Court Ruling in March 2017: The High Court held that Parliament’s failure to enact the two-thirds gender law within the prescribed period violated women’s rights and was a gross violation of the Constitution.
Chief Justice’s Advisory in September 2020: Chief Justice David Maraga issued an advisory to then-President Uhuru Kenyatta to dissolve Parliament for failing to pass a law on the two-thirds gender principle. However, the High Court suspended the implementation of this advisory.
Supreme Court Ruling in 2012: The Supreme Court gave Parliament until August 27, 2015, to pass a law effecting the two-thirds gender principle, failing which Parliament could be dissolved.
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4. Political Implications
The failure to implement the two-thirds gender rule has significant political implications:
Gender Inequality: The continued failure to pass the necessary legislation perpetuates gender inequality in political representation.
Constitutional Crisis: The advisory to dissolve Parliament and subsequent court rulings have created a constitutional crisis, highlighting the tension between the judiciary and the legislature.
Public Perception: The inability to implement the two-thirds gender rule affects public perception of Parliament’s commitment to gender equality and constitutionalism.
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5. Relevant Case Laws
Key Case Laws:
Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR:
Parties: CREAW and other petitioners vs. the Attorney General.
Outcome: The High Court ruled that the failure to implement the two-thirds gender rule was unconstitutional and directed Parliament to enact the necessary legislation.
Relevance: This case underscores the judiciary's role in enforcing constitutional mandates and protecting gender rights.
Advisory Opinion No. 2 of 2012:
Parties: The Supreme Court of Kenya.
Outcome: The Supreme Court advised that the two-thirds gender rule should be implemented progressively and gave Parliament until August 27, 2015, to pass the necessary legislation.
Relevance: This advisory opinion set a clear deadline for Parliament, which it failed to meet, leading to further legal challenges.
National Gender and Equality Commission v Independent Electoral and Boundaries Commission & another [2013] eKLR:
Parties: National Gender and Equality Commission vs. IEBC and the Attorney General.
Outcome: The High Court ruled that the IEBC must ensure compliance with the two-thirds gender rule in the composition of county assemblies.
Relevance: This case highlights the application of the two-thirds gender rule beyond the national legislature to county assemblies.
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Conclusion
The two-thirds gender rule is a critical constitutional requirement aimed at promoting gender equality in Kenya. Despite clear constitutional mandates and several judicial interventions, Parliament has consistently failed to pass the necessary legislation to implement this rule. This failure has significant legal, political, and social implications, including perpetuating gender inequality and creating a constitutional crisis. The judiciary has played a crucial role in attempting to enforce this mandate, but the ultimate responsibility lies with Parliament to enact the required laws.
TLDR
Parliament has an obligation to pass laws to implement the two-thirds gender rule as mandated by the 2010 Constitution of Kenya. Despite several legislative attempts and judicial interventions, Parliament has failed to enact the necessary legislation, leading to significant legal and political challenges.
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Answered by mwakili.com