New constitutions come because people want change. Often that change also requires new ordinary law. But the lawmakers may include many who resist change because it is designed to limit what they can do. In the constitution adopted in Nepal in 1990 there was a right to information. But it took 17 years for the necessary law to be passed. By that time the country was well on the way to a new constitution.
In Kenya under the old constitution human rights provisions were hard to enforce through the courts. The excuse was that the Chief Justice had not produced the necessary court rules for such cases.
Our constitution
In Article 22 we
find that the lesson on rules had been learned: “The absence of rules
contemplated in clause (3) does not limit the right of any person to commence
court proceedings under this Article, and to have the matter heard and determined
by a court.”
And in the very first draft constitution in 2002, not only was there a list of new laws needed, with deadlines, but, even if a relevant law was not passed, “the courts shall nonetheless give effect to the provisions of the constitution in their decisions as far as possible”.
In the National Constitutional Conference (Bomas) draft, 2004, that provision had gone, but there is another still in our final constitution (Article 261). It sets out a structured process. Anyone may petition the High Court if Parliament fails to pass necessary law. The High Court may make a declaration of the legal position. Then it may also “transmit” an order to the Speaker and the Attorney-General to take steps to ensure that the required legislation is passed within a deadline set by the court, and to report the progress to the CJ. If it does the latter, and Parliament still fails to make the law, the CJ must advise the President to dissolve Parliament and the President must dissolve Parliament. So CJ gives more than mere “advice”.
This was removed in early 2010 by the infamous Parliamentary Select Committee (MPs who did not want Parliament dissolved prematurely) but put back by the Committee of Experts (CoE).
The major failure of Kenya’s Parliament to pass needed law has been about the two thirds gender rule. The second draft by the CoE would have solved that issue for Parliament: in addition to constituency MPs and county senators, there would be enough members from party lists to ensure that overall at least one third were women. The PSC also removed this.
The CoE felt it must accept this change, but to try to preserve the two-thirds principle they introduced clause (8) of Article 27 which says the state must take measures to implement that principle.
In addition there is
Article 81(b) on the two-thirds “principle”. And Article 100 requires law to
“promote” parliamentary representation of women, person with disability, youth,
minorities and marginalised communities.
My understanding of the word “promote” is not to guarantee – but in various ways to encourage and popularise. This is clear from provisions in the constitution that speak of promoting things like Kenyan languages, cultural expression, social justice, certain values, and rights and fundamental freedoms. But Article 100 is often, wrongly, regarded as not really different from 81(b) and 27(8). Presumably this is why Parliament has never passed law for Article 100.
Impact
At one level Article 261 was remarkably successful. MPs were terrified of being “sent home” prematurely. They managed to pass almost all the new laws required – although almost always giving themselves one year extra to do it, as Article 261 allows. Sometimes one felt the quality suffered because of the rush.
But over the years at least twelve bills have been introduced in Parliament supposedly intended to satisfy the two- thirds gender rule. Most of them have not proceeded very far. Almost all would have involved amending the constitution. The reluctance of male MPs to limit their possibilities has been a major factor in the saga.
So why has Parliament never been dissolved for failing to implement this rule?
The recent case
In 2020, after receiving various petitions, then CJ Maraga “advised” President Uhuru Kenyatta to dissolve Parliament because of its failure to pass two-thirds gender legislation.
But Uhuru did not act. Instead about 10 cases came to court, and were decided together by five High Court judges on June 5 this year. Many arguments were raised, some familiar, some very strained interpretations of the constitution, some really nonsense.
The five judges’ approach meant they did not have to deal with all the arguments. Maraga’s advice arose from a judgment of Justice Mativo in 2017. This included a declaration that failure to enact law on the gender rule violated Articles 27 and 81. Mativo also made a formal order (“mandamus” – we order) to the Parliament and the AG to ensure the law was enacted within 60 days.
The five judges held that the CJ could only “advise” dissolution if the structured process in Article 261 had been followed. But Mativo’s order had not been formally “transmitted” to Parliament and the AG. So the CJ’s “advice” was unconstitutional.
Nonetheless, the five judges said, the Mativo judgment still stands. And, importantly, his order had not been addressed just to the 11th Parliament but to Parliament as such which never ceases to exist. So, they said, Mativo’s order “may” still be transmitted to Parliament and the AG.
The five judges did not order that this be done. Is it left to the High Court Registrar?
(Oddly, the five
judges said Maraga “advisory” complained that Article 100 law had not been
passed. But that is not what Mativo’s order was about.)
What happens now?
Probably there will be an appeal from this recent decision. This could take up to a year. There might even be an appeal to the Supreme Court.
Assuming that this decision remains intact, would the High Court Registrar “transmit” the Mativo order to Parliament and the AG? And the 60 days then begin? But clearly the CJ and President could not order dissolution just a few months before the 2027 election.
If the transmission should take place later next year, would anyone want to tell a newly elected Parliament it must enact something within 60 days or face dissolution?
Why 60 days? The only method of achieving the gender rule that has been widely accepted by MPs involves amending the constitution. Parliament cannot even debate a bill to amend the constitution for 90 days after it is introduced into Parliament (Article 256). (A solution is possible without amending the constitution – but male MPs fear this. They would rather we have to pay many more MPs).
Even suppose the CJ does act, there will surely be another court challenge, which could again take years.
Finally, if there should be a dissolution what happens then? A new Parliament would be elected. Article 261 with the Fifth Schedule says it would then have five years to pass the law – under either Article 100 or 27(8). So no incentive for them to do so. But Kenyans would be stuck in perpetuity with parliamentary elections being in a different year from those for the president, governors and MCAs.
Is this how we might want to solve the problem of six elections all in one day that some have argued needs to be changed?
So will it happen?
It’s not going to happen! Article 261 is effective as a threat, but not if actually carried out, especially if the deadline for the passing of the law in question is five years – the full life of a Parliament. In fact, it’s almost possible to carry out.
