• This judicial provision does not just expose, as Kenyans know, but publicly ignites and sets ablaze perennial misogyny and patriarchy, from Parliament to our bedrooms.
• The dominance of crude patriarchal power clearly shows the unanimous consensus that politically women do not exist, and when they are allowed to exist, they are regarded as a nuisance or mere tokens.
Image: JACK OWUOR
As of September 21, Treasury should have terminated the salaries and allowances of members of the unconstitutional Parliament. This comes after Chief Justice David Maraga's advisory to President Uhuru Kenyatta to dissolve Parliament, pursuant to Article 261 (7), for failing to enact the two-thirds gender law.
At this point, President Kenyatta’s role is mainly ceremonial. After Maraga's advisory, President Kenyatta has 21 days to dissolve Parliament. If he decides to ignore the advisory, all laws legislated and decisions made will be null and void.
Regarding the dissolution of Parliament, the Constitution provides three other solutions which were debunked by the #WeAre52pc collective and regarded as non-remedies as the time for their execution has elapsed. The only remedy is to dissolve this unconstitutional body.
The other options included the invocation of Article 261 (b) which allows Parliament to extend its tenure to enact the gender rule. However, the Kenyatta regime and the 12th Parliament have had eight years to solve this unconstitutionality but have not done so. Therefore giving them more time is definitely not a solution.
Another option would allow the vice chairperson of the Judicial Leaders Advisory Council to top up the number of women within the various public appointive bodies to meet the two-thirds gender quorum. But this will only enhance tokenisation of women and the state would use this opportunity to fill these positions with its cronies. The last option, which has been deemed the worst, is to hold a referendum and scrape the ‘contentious’ two-thirds gender law (Article 81 (b)) altogether.
The chair of the unconstitutional Parliament, Speaker Justin Muturi, claims it is unrealistic to dissolve the 12th Parliament for failing to enact the gender law. This particular statement opens a Pandora's box. In a country where there is rampant violence and patriarchal harm to women and their bodies, this particular statement enables the continuation of not only unconstitutionality but also this particular harm and the erasure of women from appointive and elective positions.
Ironically, Maraga's advisory claiming the need for more women in Parliament, also erases and distorts the efforts of the #WeAre52pc collective of women and allies who were the first to deliver a petition on the dissolution of Parliament on September 27, 2017.
The disregard of women is not unique to Parliament, all three arms of government are arithmetically unconstitutional as they do not meet the two-thirds threshold. Politicians have egregiously referred to the two-thirds gender principle as a pipe dream.
The dominance of crude patriarchal power within our chambers of legislature and justice clearly shows the unanimous consensus that politically women do not exist, and when they are allowed to exist, they are regarded as a nuisance or it's mere tokenism. The chronic web of cultural stereotypes, political patriarchy and dehumanising ideologies hold up the continuation of violence and harm to women.
Kenya is not just entering a constitutional crisis. The country has been in a constitutional crisis under the Kibaki (after the promulgation of the new Constitution in 2010) and the Uhuru regimes. Both have blatantly disregarded the Constitution.
We must divest ourselves of the pontification that the idea of dissolution is ‘unprecedented’ or that the constitutional precedent of the two-thirds gender principle only came into official discourse once the Law Society of Kenya filed its petition. The #WeAre52pc collective has petitioned for the dissolution of Parliament since 2017 through public petitions, education, protests, presenting their petition to the Supreme Court and delivering it to the Chief Justice.
The civil society has always reiterated that the 2010 Katiba is one of the most progressive in the world. But how helpful is a progressive Constitution that for 10 years has been trivialised by the Executive, desecrated by government and fundamentally abused? This judicial provision does not just expose, as Kenyans know, but publicly ignites and sets ablaze perennial misogyny and patriarchy, from Parliament to our bedrooms.
The dominance of crude patriarchal power within our chambers of legislature and justice clearly shows the unanimous consensus that politically women do not exist, and when they are allowed to exist, they are regarded as a nuisance or it's mere tokenism. The chronic web of cultural stereotypes, political patriarchy and dehumanising ideologies hold up the continuation of violence and harm to women.
How can a state that cannot even uphold a constitutional principle to have women in Parliament authoritatively speak about gender-based violence, femicide and the plight of women? Even with this bittersweet win, how can the Judiciary explain the intentional erasure of women’s efforts to fight for the rise, development and consolidation of constitutionalism, all the while fighting for their right to exist?
This principle is not just a constitutional crisis issue, but also a women’s rights issue. The continuous defiance of this principle is not to set limits to prevailing authority within centred ‘uthamakism’ that stinks of patriarchy but to encompass a certain guarantee of women’s rights, suffrage and citizenship.
As men justify the disregard of the CJ's advisory and support an unconstitutional Parliament in form of disputatious academic and weaponised legal language, we must collectively stand and fight for the Constitution and be guided by the resilience of the women and allies behind the #WeAre52pc collective.
As the conspicuous patriarchal uthamakism dictates monopoly over everything we do, we must firmly agitate for the emergency response to this decree as this might be our only chance to salvage the sanctity of the Constitution and the sovereignty of the citizenry from the looming totalitarianism.
The writer is an active community organiser and International Relations & Diplomacy scholar based in Nairobi