Attorney General Githu Muigai and the National Assembly have opposed a petition by civil society groups to block the reopening of Parliament over the two-thirds gender rule.
Through State counsel Jeniffer Gitiri, the AG argued that the High Court had no jurisdiction to stop the swearing-in of Members of the National Assembly and the Senate. He also said it would be in public interest if Parliament was allowed to reconvene to discuss important issues.
"The court must operate within the constitutional limits. It cannot expand its jurisdiction to violate the Constitution, which provides for how new Members of Parliament are to assume office. What the petitioners want can only be achieved if Parliament is sitting," said Ms Gitiri.
The National Assembly, through lawyer Sheriff Mwendwa, submitted that the application by the Centre for Rights Education and Awareness and the Community Advocacy and Awareness Trust was premature since the President had not gazetted the date or venue for the first sitting of Parliament.
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According to Mr Mwendwa, the petition is also defective as it is directed at the speakers of the National Assembly and the Senate when it should have named all the elected MPs and senators as respondents.
"No prejudice or harm will be caused to the petitioners if the Members of Parliament are sworn in. What they are seeking is contradictory; they are asking the court to stop the swearing-in of MPs while at the same time saying they should be compelled to pass the affirmative action laws," he said.
Constitutional crisis
Mwendwa argued that it would not be possible to have the two-thirds gender rule passed if Parliament was not sitting, which would lead to a constitutional crisis.
In any event, he submitted that the court, in a judgment issued in March, directed the AG and Parliament to enact the law within 60 days and report the progress to Chief Justice David Maraga, and that the petitioners had not sought to find out if that was done.
He said although the law had been amended to allow political parties to increase the number of women candidates in the elections, they did not succeed and Parliament should not be blamed for the failure.
"The petitioners are only awakening a dispute that had already been determined by the court. They are in the wrong place seeking orders that cannot be granted," he said.
The two organisations sought to block Parliament from reconvening, arguing that the list of elected MPs and senators did not meet the constitutional threshold of at least one-third of either gender.
Out of the 290 elective positions for the National Assembly, only 23 women were elected. In the Senate, only three women were elected out of 47 seats.
The lobby groups argued that even if one added the 47 elected woman representatives, the total still did not reach one-third.
Through lawyer Steve Ogolla, they submitted that for the National Assembly to be balanced, there should be at least 117 elected women MPs.
"We know that the Senate must have 23 members of either gender for balance but with only three elected women and 18 others to be nominated, the number will still be short of the required one-third," said Mr Ogolla.
