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Kenya: Parliament Ordered to Enact Legislation Related to Increasing the Number of Female Members

(Apr. 19, 2017) On March 29, 2017, the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi found that the two houses of the national legislature, the National Assembly and the Senate, failed to perform their constitutional obligation to ensure that not more than two-thirds of their members be of the same gender (the two-thirds gender rule).  The High Court ordered them and the Attorney-General to take the necessary steps to enact legislation for the implementation of this constitutional requirement within 60 days or be subject to a petition for the two houses’ dissolution.  (Centre for Rights Education and Awareness & 2 Others v The Speaker The National Assembly & 6 Others [2017] eKLR, Kenya Law website.)  Currently, it appears that the 350-member National Assembly has only 68 women members, and there are only 19 women members in the 68-member Senate.  (Members of the National Assembly of Parliament (from Mar. 5, 2013, onwards), MZALENDO (last visited Apr. 7, 2017); Position Holders During Senate 2013- (from Mar. 5, 2013, onwards), MZALENDO (last visited Apr. 7, 2017).)

The Constitutional Gender Rule

The 2010 Kenya Constitution guarantees the right to equality and freedom from discrimination.  It states,  “[w]omen and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”  (The Constitution of Kenya § 27 (rev. 2010), Embassy of the Republic of Kenya, Washington D.C., website.)  The Constitution seeks to ensure the implementation of this right by requiring the government to take a number of actions, including ensuring the adequate representation of women in elected and/or appointed offices.  It states:

(6) To give full effect to the realisation of the rights guaranteed under this Article, 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. …

(8) In addition to the measures contemplated in clause (6),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.  (Id.)

The Constitution reinforces the two-thirds gender rule in its electoral systems and process clause, stating that “[t]he electoral system shall comply … [with the requirement that] not more than two-thirds of the members of elective public bodies shall be of the same gender.”  (Id. § 81.)  In addition, the clause on the promotion of representation of marginalized groups states that Parliament must enact law “to promote the representation in Parliament” of historically marginalized groups, including women and ethnic and other minorities.  (Id. § 100.)

For those provisions whose implementation requires legislative action, the Constitution imposes a timeline to compel Parliament to enact the necessary legislation, set forth in the Constitution’s Fifth Schedule.  (Id. § 261(1).)  The Fifth Schedule requires that Parliament enact the legislation necessary for the implementation of the two-thirds gender rule and the promotion of representation of marginalized groups within five years of the enactment of the Constitution, that is, five years from August 2010.  (Id. Fifth Schedule.)  In exceptional circumstances, certified as such by the Speaker of the National Assembly, the Constitution permits Parliament to extend this period once, for a maximum of one year through a “resolution supported by the votes of at least two-thirds of all the members of the National Assembly.”  (Id. § 261(2).)

The Constitution also requires the Attorney-General to participate in implementing the above described provisions by preparing the necessary bills to be tabled before Parliament.  (Id. § 261(4).)

To ensure the implementation of its provisions, the Constitution imposes procedural and incremental serious substantive consequences of failure to do so.  “If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.”  (Id. § 261(5).)  In response to such a petition, the High Court may issue a declaratory order, order Parliament and the Attorney General to comply with the applicable constitutional provision, and put the two organs under the supervision of the Chief Justice for the purpose of performing the particular task.  (Id. § 261(6).)  If Parliament fails to follow through, the Constitution states that “the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.”  (Id. § 261(7).)

Supreme Court Advisory Opinion

In 2012, the Attorney General petitioned the Supreme Court of Kenya to issue an advisory opinion on whether the Constitution required the implementation of the two-thirds gender rule in the elections scheduled for March 4, 2013, or its progressive realization.  (The Matter of the Principle of the Gender Representation in the National Assembly and the Senate [2012] eKLR ¶ 1, Kenya Law website.)  The Court held:

Bearing in mind the terms of Article 100 [on promotion of representation of marginalised groups] and of the Fifth Schedule [prescribing time-frames for the enactment of required legislation], we are of the majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015.  (Id. ¶ 79.)

When Parliament was unable to enact the necessary laws to implement the two-thirds gender rule by August 2015, it extended the time frame for a year in accordance with section 261 of the Constitution.  (Centre for Rights Education and Awareness & 2 others v The Speaker The National Assembly & 6 Others, supra.)  However, Parliament was not able to implement the rule by enacting the necessary legislation before the extension period lapsed.  (Id.)

The Ruling

In its ruling, the High Court noted that the case at hand did not turn on a constitutional provision that lacks clarity, and it restated the applicable constitutional provisions.  According to the Court:

The constitution itself is very clear on the question of equality between men and women.  The constitution is very clear on the steps that were to be taken to give full effect to the realization of the two third [sic] gender rule.  The constitution requires the state to 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.  Article 27 (8) requires 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 are of the same gender.  The period allowed for passing the desired legislation lapsed without the legislation in question being in place.  Parliament extended the period by one year but again it failed to enact the required legislation.  The extension also lapsed and that wi[n]dow closed.  (Id.)

The Court held that “the National Assembly and the Senate have failed in their joint and separate constitutional obligations to enact legislation necessary to give effect to the principle that not more than two thirds of the members of the National Assembly and the Senate shall be of the same gender.”  (Id.)  The Court further held that this failure “amounts to a violation of the rights of women to equality and freedom from discrimination and a violation of the constitution.”  (Id.)

The Court ordered the Parliament and the Attorney General “to take steps to ensure that the required legislation is enacted within A PERIOD OF SIXTY (60) DAYS from the date of this order and to report the progress to the Chief Justice” and that if this order is not duly implemented within the stipulated time period, “the Petitioners or any other person shall be at liberty to petition the Honourable the Chief Justice to advise the President to dissolve Parliament.”  (Id.)