When David Maraga sought to send MPs home over two-thirds gender rule

Former Chief Justice of Kenya David Maraga. [File, Standard]

In September 2020, Parliament’s foundation was shaken after Chief Justice David Maraga urged President Uhuru Kenyatta to dissolve the House for failing to enact legislation on the two-thirds gender rule embedded in the 2010 Constitution.

Parliament, since 2012, has been sitting on key legislation that would actualise Article 27(8) of the Constitution, which provides that the State shall take steps to ensure that not more than two-thirds of members of all elective and appointive positions are of the same gender. This despite four court orders compelling the House to do so.

Four attempts failed on the floor of the House to enact the legislation required to implement in accordance with Article 27(3) read together with Articles 81(b) and 100 of the Constitution but has failed to do so.

MPs simply stayed away from the House despite the vocal and bipartisan support for the quest to increase the number of women in Parliament.

Magara was acting on six petitions seeking to have him advise the president to dissolve Parliament despite numerous court orders and an advisory opinion by the Supreme Court, which had directed Parliament to enact the requisite legislation by 27th August 2015.

So, Parliament remained in limbo waiting for the decision President Uhuru Kenyatta would take. It was widely called a constitutional crisis, but how did we get to that point?

In the 11th Parliament, women made up 19 per cent of the National Assembly and 27 per cent of the Senate. In the 12th Parliament, they constituted 21.78 per cent of the National Assembly and 30.88 per cent of the Senate. In the scenario envisioned by the Constitution, these figures should not be less than 33 per cent.

There have been a number of initiatives that have attempted to amend the Constitution of Kenya 2010 to provide for top-ups through nominations of persons of the least represented gender or even to scrap the two-thirds gender rule contained under article 177 of the Constitution.

Progressive implementation

In 2015, then Justice and Legal Affairs Committee Chairman at the National Assembly Samuel Chepkonga introduced two bills, the Constitution of Kenya (Amendment) Bill, 2015 and the Gender Rule Laws (Amendment) Bill, 2015 which proposed the progressive implementation of the Article 177 on the gender rule.

The “Chepkonga Bill” was widely criticised for its attempt to postpone indefinitely Parliament’s responsibility of implementing the two-third-gender principle.

A majority of the MPs stayed away from Parliament on the voting day of the second reading, failing in the technical requirement that for a vote to be taken, it must be supported by at least a two-thirds majority, calling for at least 233 of the 349 MPs.

Then National Assembly Majority leader Aden Duale too tried and failed. Duale published his Bill on July 24, 2015.

The Duale Bill sought to introduce a clause to provide for the nomination, from party lists, of the number of members necessary to ensure that the membership of the National Assembly and the Senate meet the gender requirement.

The Bill also limited the application of this mechanism to 20 years with a possibility of extension for a further 10 years if the minimum gender quota is not achieved.

It further limited to two terms the period that one may be nominated under this mechanism. Each party list was also required to reflect regional and ethnic diversity and the beneficiaries should include young women and women with disabilities. 

Bipartisan support

Despite bipartisan support, some parliamentarians indicated that they would not support the Bill arguing that it would increase the size of Parliament and cost taxpayers.

However, only 178 MPs came to Parliament on the day of voting forcing the vote to be shelved. Another vote scheduled for November 2018 was also lost.

Wiper Leader Kalonzo Musyoka, was physically at Parliament to show solidarity and rally the legislators to pass the law, but with only 207 being present, the Bill was lost.    

The Senate also attempted to pass a law, the Senate could not pass the “Sijeni Bill” and submit it to the National Assembly. It was largely the Duale Bill, apart from variations on the maximum time that beneficiaries may be members of Parliament through this mechanism.

In September 2021, National Assembly Speaker Justin Muturi said that Parliament has been wrongly castigated for failure to enact the relevant legislation following the promulgation of the Constitution.

“The high-level criticism leveled against the Kenyan Parliament is somewhat misplaced in my considered view. To begin, it is the State that is empowered to ensure that two-thirds of members of all elective and appointive positions are not of the same gender,” Muturi said.