GENDER RULE

Mixed reactions after CJ Maraga asks Uhuru to disolve parliament

Application of foundational principles and values of the rule of law is now the big test.

In Summary

• While some hit back at Maraga saying the calls were premature, others said the CJ will go down in history for having stood up against the violation of the rule of law.

• Maraga on Monday advised President Uhuru Kenyatta to dissolve Parliament for failing to enact legislation required to implement the two-thirds gender rule.

Members of parliament and senate at the parliament gallery during the opening of the 11th parliament.
Members of parliament and senate at the parliament gallery during the opening of the 11th parliament.
Image: FILE

The call by Chief Justice David Maraga to have the Parliament dissolved has generated public debate.

Various political leaders took to social media platforms to express their sentiments over the matter.

While some hit back at Maraga saying the calls were premature, others said the CJ will go down in history for having stood up against the violation of the rule of law.

 

Maraga on Monday advised President Uhuru Kenyatta to dissolve Parliament for failing to enact legislation required to implement the two-thirds gender rule.

In an advisory dated September 21, Maraga said he was responding following six petitions seeking his advice on the matter.

"The petitions are based on the ground that despite four court orders compelling Parliament to enact the legislation... Parliament has blatantly failed, refused, or neglected to do so...." Maraga said.

The CJ said it was his constitutional duty to advise Uhuru.

"Let us endure pain if we must..." he said.

According to Maraga, the Supreme Court under former CJ Willy Mutunga had directed Parliament to enact the requisite legislation by August 27, 2015.

 

The CJ said that several petitions had been raised challenging Parliament to enact the law.

However, Parliament has failed to enact it despite four orders asking members to enact it.

"Parliament, once again, failed to enact the requisite legislation, thus the provoking six petitions before me requiring me to advise you dissolve it."

But Speaker National Assembly Justin Muturi hit back saying such a move was unrealistic.

Muturi said Parliament should not be used as a punching bag, further adding it was 'unrealistic' to call for its dissolution for failing to enact the gender law.

"We must not lose sight of the real challenges in implementing this matter and turn Parliament into a punching bag on account of gender parity," he said in a statement on Monday.

He further said, "The clamour for dissolution of the current Parliament on account of failure to enact the two-third gender legislation is at the very least, unrealistic."

But Siaya Senator James Orengo said Maraga's call was a big test to the rule of law and constitutionalism.

"CJ Maraga’s advice to the President to dissolve parliament is momentous. Probably the most significant and historic from a constitutional standpoint. How we apply foundational principles and values of the rule of law and constitutionalism is now the big test," Orengo said.

His Makueni counterpart Mutula Kilonzo Junior said Maraga's message for the dissolution of Parliament was premature.

"Article 216(6) requires an order to be issued before the clause(7) is invoked. Sen Farhiya and yours truly have a constitutional amendment bill on two-thirds gender rule at second reading. The president should RTS the advisory," he said.

Bungoma's Moses Wetangula said Maraga was dead wrong on the matter.

"On the basis of the legal doctrine and logic of 'balance of convenience', CJ Maraga is dead wrong. He has acted per incuriam and nobody or authority will act on the same," Wetangula said.

He said the resolution, restatement and construct of the gender rule is not just about Parliament.

Senate Majority Whip Irungu Kangáta said Maraga should have afforded Parliament an opportunity to be heard before him prior to issuing the advisory.

"We would have brought to his attention a bill that's before Senate's Justice Committee on the matter. Also, the Senate has adhered to 2/3 rule hence, why punish the Senate",  he posed.

Lawyer Donald Kipkorir argued that the advisory from the CJ to the head of state is like a love letter to BBI Supporters.

The lawyer said the primeval instinct of MPs is self-preservation.

"All MPs will gang up and amend the Constitution to remove the gender rule," he said.

David Makali in his comments said Maraga has finally bitten the (last) bullet and in compliance with the Constitution by advising the president to dissolve Parliament for failing to meet the constitutional threshold.

"I salute the CJ for the courage to make history again," he said.