No issue in Kenya has drawn more divergent and impassioned views on its definition and implementation as the two-thirds gender rule.
Next year marks the 10th anniversary of the Constitution, yet its imperative on the gender composition of public bodies has never been fully implemented, and there is currently no clear direction in sight from the government on how this the issue will be resolved. How can this major legislative task set by the Constitution have proved so hard for multiple governments and Parliaments to tackle? Could this be by design?
CONSTITUTIONAL REQUIREMENT
The principle of equity in the gender composition of elective and appointive positions in public institutions is a recurring theme in our Constitution. Its importance is reflected by the fact that it is also a fundamental right within our Bill of Rights.
The Constitution requires that ‘not more than two-thirds of the members of elective public bodies shall be of the same gender’ (Articles 81(b), 175(c), and 177(1)(b). This refers to representation in the National Assembly, the Senate and County Assemblies. Political parties (under Articles 91(1)(f)) and the Judicial Service Commission (under Article 172(2)(b)) must promote and ensure gender equality. the chairperson and vice-chairperson of constitutional commissions must not be of the same gender under Article 250(11); while Article 197(1) requires that ‘not more than two-thirds of the members of any … county executive committee shall be of the same gender’. And finally, more broadly, Article 27(8) on equality and freedom from discrimination, requires the State ‘implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender’.
The message, you might think, could hardly be plainer.
WHAT THE COURTS HAVE SAID
This issue has been taken to the courts perhaps more than any other constitutional principle. And considerable creativity has been displayed by the parties who have taken it there, faced with the obstinacy of the political leaders. You can see this from the following brief snapshot of the cases and the responses of the courts in the order in which they happened.
2012
The quest to determine the timeline for implementation of the two-thirds gender rule began in 2012 when the then Attorney General, Githu Muigai, sought an advisory opinion from the Supreme Court. He wanted clarification on whether the two-thirds gender rule was to be implemented progressively or was applicable immediately including to the then-upcoming 2013 General election. The Court was of the view that this rule should be implemented progressively – so not for 2013. But it said the law must be passed no later than 27th August 2015. This was because Schedule Five of the Constitution (on timelines for passing legislation required by the constitution) gave that date for the law “promoting” the representation of women. By the way, Chief Justice Mutunga disagreed with his colleagues and said that the two-thirds principle applied immediately. (The case was called In the Matter of the Principle of Gender Representation in the National Assembly and the Senate).
The deadline provided by the Supreme Court (and even an extension of one year that Parliament gave itself) lapsed with no law having been put in place to operationalise the two-thirds gender rule in Parliament.
2016
It is not just Parliament that has more than two-thirds men. Marilyn Muthoni and others took a case to the High Court seeking dissolution of the then cabinet for violating the two-thirds gender rule. The late Justice Joseph Onguto delivered a decision, which asserted that this rule equally applies to cabinet appointments as it does to elective bodies. Therefore, the President had violated the Constitution by nominating and maintaining a Cabinet that did not meet the two-thirds gender rule, and Parliament did the same by approving it. The court, however, suspended the enforcement of the dissolution order because the country was heading for another national election, ordered that when the next Cabinet was constituted the Constitution must be complied with.(This was Marilyn Muthoni Kamuru v. Attorney General).
2017
In 2016, the Centre for Rights Education and Awareness (CREAW) brought the two-thirds in Parliament issue back to court. They asked for an order dissolving Parliament for failure to pass the necessary law within the time stipulated under the Constitution and the Supreme Court. Justice John Mativo found that indeed Parliament was in violation of its obligation. He directed Parliament to pass the required legislation with sixty days. If this did not happen, any person could petition the Chief Justice to advise the President to dissolve Parliament. It would be more than advice” –the President would have to act. (Centre for Rights Education and Awareness v Speaker the National Assembly) [.
This time lapsed on 28th May 2017, once again with no law having been passed by Parliament.
Also in 2017, the Katiba Institute took a case to the High Court arguing that the Independent Electoral and Boundaries Commission had a constitutional obligation to ensure that political parties’ lists of candidates for the various positions complied with the two-thirds rule. Justice Mwita agreed that the realization of the two-thirds gender principle could not be left to the legislative process alone. He noted that the phrase ‘other measures’ in Article 27(8) shows that the principle may be attained through other means apart from law. Therefore political parties were under an obligation to ensure that proactive measures were taken to assist in the implementation of the principle. However, the short time period before the August 2017 general elections meant that to order the IEBC to act straight away would lead to confusion. This decision, therefore, means that the IEBC is under obligation to ensure that for the next general elections this judgment is complied with. (Katiba Institute v Independent Electoral & Boundaries Commission ).
2019
Parliament appealed against that 2017 decision in the CREAW case. Parliament argued that its dissolution would create a constitutional crisis. On the other hand, CREAW and others argued that complying with provisions of the Constitution cannot result in a constitutional crisis. The real crisis was the deliberate refusal to enact legislation required by the Constitution, thus undermining the rule of law. They pointed out that the Constitution itself provided for dissolution if Parliament failed to enact any legislation required under it.
The Court of Appeal gave its judgment very recently. It found that the timeframes set under the Constitution have been exhausted and the decision of the High Court to extend this period by sixty days was logical. It, therefore, agreed with Justice Mativo. (Speaker of the National Assembly v CREAW].
WHAT DOES THIS MEAN?
The law, as has been developed by our courts, is that the two-thirds gender rule must now be realized for both elective and appointive positions. It also means that the two-thirds gender rule is not just a ‘women’s issue’ but is a constitutional imperative, one that is at the foundation of democracy and the right to representation of a majority. As the Court clearly said: “As of now, Parliament has not enacted any legislation and any interested party may petition the Chief Justice to advise the President to dissolve Parliament. And going back to our question (Could this be by design?), the Court of Appeal commented that the repeated failure to get a quorum to pass the law “does not speak of a good faith effort to implement the gender principle”.
There are further implications of these decisions, some of which are before the courts. Various other institutions, including the Supreme Court and national and county executives, may be held not to be lawfully composed.
If a body is not lawfully composed, can any decisions that it makes be lawful? The saga of the two-thirds gender rules in the courts of Kenya is not yet over.
The author is the Acting Executive Director of Katiba Institute
