Parliament has directed its legal team to challenge the decision of the Court of Appeal that found MPs culpable of failing to enact the elusive two-thirds gender rule as required by the Constitution.
The implication of this ruling is that anyone can move to court to have parliament dissolved for failing to pass the law within the required time frame.
This essentially means MPs losing their seats with the ugly possibility of a government shutdown for lack of funds, given their crucial role in budget-making - allocating money to the national and county governments.
The law is required to implement a constitutional provision that not more than two thirds of the people in public and appointive public bodies shall be of the same gender.
To actualise this provision, parliament was required to pass this law within five years of the enforcement of the Constitution on August 27, 2010, in line with the fifth schedule of the supreme law.On Tuesday, National Assembly Clerk Michael Sialai said that the seven Supreme Court judges will be the last arbiters on why parliament should be spared because it has tried without success to put measures in place to pass the law.
“Our legal team is studying the pronouncement of the court with a view to appealing to the Supreme Court. We have to extract the ruling itself before filing our case. I believe we are well within the appeal’s period,” Mr Sialai said.
Last Friday, three judges of the Court of Appeal said that an appeal by Speakers Justin Muturi (National Assembly) and Kenneth Lusaka (Senate), that parliament had done its best to have the law in place, lacked merit.
Although Justices Philip Waki, Gatembu Kairu and Kathurima M’Inoti acknowledged efforts by parliament to enact the law, they said the requirement had never been put into serious consideration.“It is equally a matter of public notoriety, which we are entitled to take judicial notice of, that none of those amendment bills, has been debated or considered by Parliament seriously. They all have been lost due to lack of quorum in the National Assembly,” the judges said.
The two Speakers had contested High Court Judge John Mativo’s ruling in March 2017, which gave the MPs 60 days to enact the law.
Justice Mativo had said that after the lapse of the 60 days, any Kenyan was free to petition the Chief Justice David Maraga to advise President Kenyatta to dissolve parliament.
The judge noted that there was clear indication that parliament had failed, refused and\or neglected to perform its constitutional mandate prescribed in the Constitution.
The law is needed to implement articles 27 (6) and 100 of the Constitution. However, more than eight years down the line, the enactment continues to drag.
But even as this goes on, Mr Muturi faulted the Court of Appeal ruling saying implementation of article 100 was not just about gender representation but all marginalised groups.
“The Justice and Legal Affairs Committee is already working on this and has notified me of a bill it is formulating to promote representation in parliament of all the marginalised groups in the country,” he said.
The groups as prescribed in article 100 include women, persons with disabilities, the youth, ethnic minorities and some communities.Mr Muturi notes that if anything, it is not the mandate of parliament to ensure that not more than two thirds of members of elective or appointive bodies are of the same gender.
He bases his argument on article 27 (6) of the Constitution, which says the state shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
Sub-article eight of this provision goes on to say that the state shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.