Okiya Omtatah opposes attempts to amend Constitution to attain two-thirds gender rule

NAIROBI: Civil rights activists have moved to court seeking to block an attempt to amend the constitution as directed by the Supreme Court two years ago to achieve the two third gender rule.

In the petition filed in court activists Okiya Omtata and Wycliffe Gisebe maintained the constitution was supreme and argued that no court of law has the capacity to issue orders whose implementation require amendments to the Constitution.

In their petition the two also want the National Assembly and the Senate excluded from the principle of two third gender rule as the positions were elective and the constitution had not reserved seats to ensure the rule was attainable.

“A declaration should be issued stating that the principle of the two thirds gender representation in the Constitution does not apply to the Presidency, the Governorships, the National Assembly, and the Senate; it applies only to those bodies that the Constitution itself directly applies the principle to,” they submitted.

They want the court to issue a declaration that legislators in the two houses elected at the next general elections in conformity with the Constitution will not be unconstitutional if its membership does not embody the principle of the two third gender representation.

The activists submitted that the Supreme Court had on December 11, 2012, through an advisory opinion, observed that it would require amending Articles 97 and 98 to apply gender quotas to the National Assembly and Senate and gave the deadline for achieving this as August 27 this year.

The duo explained that pursuant to the advisory opinion, the Attorney General (AG) has proposed that Parliament amends the Constitution to meet the gender requirement in the two houses.

“The August 27, deadline is a threat to the Constitution since, by requiring that the Constitution be amended following an Advisory Opinion of the Supreme Court, is contrary to Article 2(3) of the Constitution, which forbids courts of law and other State organ from challenging the validity or legality of the Constitution, is violated,” Omtata and Gisebe submitted.

They added that the interpretation of the Constitution is not reserved for the exclusive jurisdiction of the Supreme Court and added that in the circumstance any person had the capacity to move the high court to render an authoritative interpretation of the Constitution and other laws irrespective of whatever Advisory Opinions the State has extracted from the Supreme Court.

The activists argued that Supreme Court violated the Constitution when it directed the AG that by August 27, 2015, he must have put in place a legal framework for the application of the principle of two thirds gender representation in the National Assembly and in the Senate.

“The Supreme Court, or any court of law for that matter, cannot order the Constitution to be amended. It ought to have dropped its tools the moment it realized that it would require amendments to Article 97 and 98 of the Constitution to apply gender quotas to Parliament,” said the activists.

High court judge Mumbi Ngugi Mumbi Ngugi ordered the activists to serve the AG, National Assembly and Senate.

The judge recused herself from hearing the matter and forwarded the file to Justice Isaac Lenaola. The matter will be heard on July 24.