inally, it had to come to this: Parliament has 60 days to enact a law on the implementation of the two-thirds gender rule for elective positions. If it fails, it is dissolved!
We have come nearly this close before, but it took the courage and the erudite reasoning Justice John Mativo to get firm orders and a deadline with consequences directed at Parliament.
The Supreme Court in 2012 was presented with a similar opportunity when the Attorney General requested an advisory opinion on whether the two-thirds gender rule applied to the 2013 general election. The top court dithered. In a majority decision, the top court told us the implementation of the two-thirds rule was progressive and — in the same breath — that the progressivity had a deadline, August 27, 2015. The opinion was a blow to what was a reasonably clear constitutional provision on empowerment of women, especially given a long history of political denigration that women have suffered.
But the then Chief Justice Dr Willy Mutunga’s contrary opinion was firm. Women had been made to wait for too long. They need wait no more, especially after all their struggles had delivered both Article 27, which required equal opportunities for men and women, and the unequivocal Article 81(b) that required at the minimum that Parliament be composed of at least one-thirds of the lesser represented gender. The chief justice ended by cautioning the courts should not allow Parliament, through its silence, to hold back rights that the Constitution had already conferred on women.
Back to Justice Mativo. But, before then, how did this case come about?
Following the Supreme Court’s opinion, the AG and the then Commission for Implementation of the Constitution dragged their feet in proposing possible legislation. A testosterone-dominated Parliament was least interested. The Centre for Rights and Education Awareness saw this from afar and took the AG and the CIC to court. In early 2016, Justice Mumbi Ngugi found that both the AG and the CIC were in dereliction of duty by failing to present to Parliament draft legislation to implement the two-thirds gender rule. But this was not sufficient warning for Parliament. Half-heartedly, and seemingly with a clear intent at sabotage, Parliament attempted a constitutional amendment. During some sessions hardly any parliamentarian turned up to vote, though two-thirds of them were needed to approve the amendment. Worse, neither the leader of the Coalition for Reforms and Democracy, nor the President cared much to mobilise their parliamentary troops. It did not really matter: They assumed women would vote for them anyway.
Come September 2016, and despite a choreographed one-year extension, Parliament still had the two-thirds business on its legislative back burner, not steaming but just there. Cold, forgotten. CREAW, CRAWN-Trust and the Kenya National Commission for Human Rights sued.
HOW BASIC THIS ALL IS
Justice Mativo’s judgment is straightforward. The Constitution required Parliament to pass a law to guarantee that not more than two-thirds of MPs were of the same gender. The Supreme Court said that the law must be passed by August 27, 2015. Instead, Parliament gave itself an extension to August, 2016 — something the Constitution allowed. But it still did not pass the law.
And what was most offensive, in its defence, Parliament tried to delay the matter and rely on technicalities to escape responsibility, instead of directing all its energies to addressing the question of the two-thirds constitutional imperative that was before court.
Then Judge Mativo did a lot of educating. The Constitution is supreme. Parliament is not. Parliament is subject to the Constitution, so too are the courts. And one way that courts serve the Constitution is by vigilantly pronouncing themselves when anyone, including Parliament, contravenes the Constitution.
But what inspired Justice Mativo’s approach: Perhaps the one line of the judgment that will stay with me for a very long time — “equality of rights under the law for all persons, male or female, is so basic to democracy and commitment to human rights.” Such a basic finding, yet so fundamental.
Those who wrote our Constitution were alert to the ways of our parliamentarians. They knew that deadlines to enact laws would not alone force Parliaments, often overwhelmed with delusions of grandeur, to enact all the laws needed to implement the Constitution. So they added Article 261 in the Constitution.
This says that if parliamentarians fail to enact a law required to implement the Constitution within the stipulated timeline, they can extend the period by a year — once. If ultimately they don’t pass the law, anyone can complain to the High Court, which, if it finds Parliament in default, may impose a timeframe within which to pass the law. And, if Parliament does not honour the court’s deadline, then anyone – and here it is anyone – can notify the Chief Justice of Parliament’s failure. Here is where it hurts — “the Chief Justice shall advise the President to dissolve Parliament and the President shall [means “must”] dissolve Parliament.” The two “shalls” are not platitudes; neither Chief Justice nor President has an out from his respective “shall”.
A MURKY SITUATION BORN OF PARLIAMENTARY MISCHIEF
What next for Parliament? The parliamentarians may have anticipated that the judge would order dissolution if they failed to pass the legislation. Anyway, it is plainly there in the Constitution for those parliamentarians who can, and choose to, read it. I bet they all never saw one thing coming — the type of law the court would require them to pass. Because of the short timelines imposed by Justice Mativo, that law can only be statutory not a constitutional amendment (because the latter takes over three months). (Male) MPs preferred no change, but their second choice was to amend the Constitution to introduce women top-up seats in Parliament. But this is not an option now.
History is important here. In 2011, the Kenya Law Reform Commission and the Interim Independent Electoral Commission proposed in the draft Elections Bill how a simple formula to achieve the two-thirds in Parliament Cluster constituencies into fours and in each election cycle designate one from each cluster to have only women candidates contesting. Over four general elections all the 290 constituencies, save two, would have gone through this cycle.
Men hit the roof, not least our then male-dominated Cabinet. The proposal was unceremoniously dropped based on warped logic (if “logic” is the right word). This was their hue and cry: How do you convince a man who has resolved to run in a particular constituency that this is a woman-candidate only constituency. Some were blunter, “If Baba wants to run in Kibra, how do you now tell Baba this election cycle Kibra is a woman-candidate only constituency. Or where do you start from if you have to tell one Uhuru Kenyatta, son of Jomo, that he cannot run in Gatundu South. How? My friend, hizi viti zina wenyewe!”
But, ridiculous as it may sound, this formula is constitutional.
NOW WE SIT AND WATCH
True affirmative action means that those who have spent lifetimes perched on others’ shoulders have to climb down and offer their shoulders to be trampled upon too. This is what the legislation to enforce the two-thirds gender rule will demand. It is the time for patriarchy to yield, at least to some extent. If however our parliamentarians decide to be adamant about disobeying the Court, they better be ready to be consumed by the unrelenting wave of a transformative Constitution. The scenario demands a front row seat to watch what unfolds next.