Kenya’s Gender Bill: Battling inequality, saving the constitution

On February 27, Kenya‘s national assembly once again refused to enact the Constitution of Kenya (Amendment) Bill 2018, also known as the Gender Bill, which seeks to legislate on the constitutional requirement that neither gender should have more than two-thirds in elective positions.

The National Assembly did so by denying the bill the requisite quorum for a constitutional amendment which requires two-thirds of the members of the house to be present. So, the MPs didn’t just fail to pass the bill, but they refused to show up to even allow for the possibility of its enactment. 

The refusal by the National Assembly to enact the bill reflects an escalation in a constitutional conflict and has implications on the stability of the constitutional and democratic framework in Kenya.

The Constitution of Kenya 2010 in Article 27(8) of the Bill of Rights provides 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.” This provision is also reiterated in Article 81(b) on the principles of the electoral system and is commonly referred to as “the gender principle”.

Since the promulgation of the current constitution in 2010, Kenya has been struggling to realise the above-mentioned provisions. The issue has been the subject of litigation for almost a decade, with the courts consistently holding that the parliament has an obligation to enact legislation to ensure that its gender composition in both elective and appointive bodies is in line with the requirements laid out in the constitution. 

In 2012, the Supreme Court of Kenya gave parliament until August 27, 2015, to enact legislation to implement the provisions of Articles 27(8) and 81(b). Despite this, Parliament has failed and/or refused to enact legislation. In March 2017, the High Court once again found that parliament had failed in their constitutional obligations to enact legislation on the gender principle, and gave them 60 days within which to do so. The court further ordered that should parliament fail to enact the legislation during this period, the provision of Article 261 of the constitution applies and any person could petition the chief justice to advise the president to dissolve parliament. Despite all this, parliament did not enact the legislation within the 60 days.

Article 261(7) provides that if parliament fails to enact any court-ordered legislation to implement the constitution, “the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.” This is the sole constitutional remedy provided for the failure and/or refusal by parliament to enact constitutionally required legislation. Perhaps because it is a last resort, the language in Article 261(7) is mandatory for both parties. Neither the chief justice nor the president is granted any discretion; nor incidentally, does it require the chief justice to be petitioned to act. 

With the refusal of the National Assembly to enact the Gender Bill, the constitutional obligations of the chief justice and the president are unambiguous. Chief Justice David Maraga is required to advise President Uhuru Kenyatta to dissolve parliament, and the president is obligated to do so. 

In late 2017, Maraga received two petitions urging him to act pursuant to his constitutional obligations in Article 261(7) and advise the president to dissolve parliament. Despite these petitions, and the explicit constitutional language obliging him to act, he has yet to advise President Kenyatta to dissolve parliament.

Therefore, last month, when the National Assembly, a body that is itself unconstitutional according to the gender principle (as 78 percent of the MPs are men, in excess of the constitutional maximum of two-thirds or 67 percent), denied the Gender Bill the requisite quorum, it did so with full knowledge of the consequences. This deliberate defiance to trigger a constitutional provision on the dissolution of parliament is a decisive test of not only constitutional officeholders (the chief justice and the president) but also the supremacy of the constitution itself. 

Since the decision, there has been no statement from the government’s chief legal adviser – Attorney General Paul Kihara. This is not surprising given that the attorney general is a part of an unconstitutional and illegal cabinet, which itself violates the gender principle just like parliament (men make up 75 percent of the cabinet).

Before the current attorney general’s nomination and appointment in 2018, the High Court had already ruled that the president and parliament had acted in violation of the constitution in nominating and approving, respectively, a cabinet where men exceeded two-thirds of the total membership. The government’s chief legal adviser, therefore, holds office in violation of the constitution and a court order. On March 1, 2019, the president signalled his continued rejection of the limits of constitutional and judicial authority on his office by nominating Professor George Magoha, a man, for the role of education minister.

The systematic violation of the constitutional provisions on women’s inclusion extends well beyond parliament. The Gender Bill may merely be the means for elements within the government to upend the constitutional order in Kenya. 

Whatever happens next, it now appears that Kenya is in the throes of a constitutional crisis. Will the chief justice act in defence of the constitution of Kenya? Or, as a member of an unconstitutional Supreme Court (which also violates the gender principle with men holding 71 percent of membership), will he continue to be complicit in the constitutional violations and with his inaction deal the fatal blow to the constitution? If Chief Justice Maraga does play his constitutional role, will President Kenyatta, who has repeatedly violated the constitution and defied the judicial branch, finally abide by the law or will we witness this administration’s decisive break with the legal framework? What happens if parliament is dissolved? Will the already discredited four-member (all male) Independent and Electoral Boundaries Commission (IEBC) be able to conduct elections?

Women aren’t the only victims of the National Assembly’s refusal to enact the Gender Bill. The Gender Bill has simply provided a battleground, it is a convenient means, but not an end. The objective is to unencumber democratically elected leaders from the legal framework that facilitated their assumption of power. The ramifications of parliament’s refusal to enact the bill extend beyond the struggle for gender equality. They are a repudiation of the constitution and the principles of democracy. The actions of constitutional actors in the coming weeks will provide the clearest indication since 2010 of Kenya’s commitment to democracy, its constitution and the rule of law.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.