•Parliament was accused of not making any effort to implement the rule as the court directed on several occasions
•If Parliament fails to enact the two-thirds gender rule, any Kenyan is at liberty to petition the Chief Justice to advise the President dissolve Parliament.
Parliament risks being dissolved if it fails to pass the two-thirds gender rule as it has been directed by the High Court
Yesterday the Court of Appeal yesterday dismissed the government's effort to overturn the decision of the High Court that ordered it to enact the rule and develop implementation guidelines.
The speakers of the National Assembly and the Senate argued that the gender law is impractical and impossible to implement because Parliament has a fixed number of lawmakers.
It is equally a matter of public notoriety, which we are entitled to take judicial notice of, that none of those constitutional amendment bills has ever been debated or considered by Parliament seriously, they have all been lost due to lack of quorum in the National AssemblyAppeal Court
However, in its ruling, the Appeal Court faulted Parliament for not taking up the matter to ensure numbers of women increase in the House.
Gender bills have failed four times for lack of quorum; men have stayed away.
Article 81 (b) of the Constitution states: “Not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”
Justices Phillip Waki, Gatembu Kairu and Kathurima M’inoti dismissed the appeal by Parliament on grounds that none of their issues had any merit.
The court said it is on record that Parliament has undertaken several initiatives including publishing constitutional amendment bills to implement the gender principle.
“It is equally a matter of public notoriety, which we are entitled to take judicial notice of, that none of those constitutional amendment bills has ever been debated or considered by Parliament seriously, they have all been lost due to lack of quorum in the National Assembly,” the court ruled.
The bench accused the legislators of not putting in any effort to implement the gender rule, as the court directed on several occasions.
“That, to us does not speak of a good faith effort to implement the gender principle and is precisely the kind of conduct that the people of Kenya wanted to avoid by writing into the Constitution Article 261,” the court said.
In their appeal, Parliament has insisted that the Constitution defines a fixed number of seats in the National Assembly and the Senate, at the same time gives citizens the right to exercise their free will when it comes to electing their representatives, the submissions read.
The speakers argue that it is not their role to introduce legislation on the floor of the House adding that those who ought to have been sued are all the MPs and senators.
In his ruling, Justice John Mativo ruled that if Parliament fails to enact the two-thirds gender rule, any Kenyan shall be at liberty to petition Chief Justice David Maraga to advise the President to dissolve it.