Attorney General Githu Muigai has warned of dire consequences to Parliament, including dissolution if it fails to obey a Supreme Court order that gave directions on the two-thirds gender principle. Githu said a petition under Article 261 could easily have the current Parliament hurtling towards dissolution.
The A-G also warned that the legitimacy of the new Parliament after the 2017 General Election could be called into question if the two-thirds gender rule is not attained, “with all the attendant risks and consequences”.
Githu has written to Speakers of the National Assembly and the Senate, Justin Muturi and Ekwee Ethuro respectively, urging them to convene a stakeholders’ meeting to resolve the issue and take note of the potential risks and consequences. The AG’s advisory took note of the failure by Parliament to pass the Constitution (Amendment) Bill No 6 of 2015 that sought to amend Articles 97 and 98.
The amendment was to provide for number of special seats necessary to give effect to the two-thirds gender rule. Similarly, the Senate Constitution Amendment Bill by Nominated Senator Judith Sijeny of a similar intent has not been debated twice for lack of quorum.
“I would strongly recommend that the leadership of Parliament convenes a stakeholders’ meeting to resolve the above question and take note of the potential risks and consequences outlined for information and further action,” said Githu in a signed letter, dated August 24.
The Supreme Court also gave guidance on the two-thirds gender rule in its advisory No. 2 of 2012 which required Parliament to enact legislation to give it effect, articulated in Article 81(b) by August 25, last year, but was extended to August this year.
Githu referred to the Supreme Court Advisory on the consequences of failure to enact such legislation by its reference to Article 261 under the transitional and consequential provisions of the Constitution in which the High Court may be moved by any person to issue appropriate orders and directions and consequently initiate the process of dissolution of Parliament.
Debate has raged over the gender principle, with various formulae being brought forth to address the stalemate. The National Gender Equality Commission warned in July that both Houses could be declared unconstitutional if the two-thirds gender principle was not implemented.
It further warned that MPs who win in next year’s election may not take office should Parliament fail to pass a bill effect the two-thirds gender rule. Commission chairperson Winfred Lichuma said since MPs failed to pass a legislation, time has come for the National Assembly to provide an alternative way to achieve the rule.
A bill seeking to amend the Constitution and implement the gender principle failed to get the required 233-member support to allow it pass to the Second Reading stage in the Assembly.
The bill was mooted by Leader of Majority Aden Duale. Similarly, a bill sponsored by Senator Sijeny last month did not push through, sparking criticism. Among other issues, the bill proposes to compel political parties to adhere to the rule in their nomination lists.
Religious leaders have accused Parliament of impunity for failing to pass the bill. In June last year, Parliament declared it would seek a nine-month extension on the August 2015 deadline to build consensus on the matter.
The AG has maintained that the Executive is fully behind implementation of the gender rule and to demonstrate commitment, it moved to the Supreme Court to seek guidance over the matter in addition to setting up a working group to look into means of meeting the affirmative action. The Institute of Economic Affairs (IEA) assured last year that there would be no cost implications if the gender principle was fully complied with.
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