Today, a five-judge bench will convene to hear pivotal applications concerning an advisory issued by former Chief Justice David Maraga in 2020, urging then-President Uhuru Kenyatta to dissolve Parliament. The advisory, which stems from Parliament’s failure to implement the two-thirds gender rule, has sparked a legal battle that has been lingering in the courts since 2019. Chief Justice Martha Koome reconstituted the bench to handle this case as a priority, underscoring its significance in Kenya’s ongoing quest for gender equity and legislative accountability.
The bench, led by Justice Jairus Ngaah, includes Justices Lawrence Mugambi, Patricia Nyaundi, Moses Otieno, and Tabitha Wanyama. They are tasked with determining the outcome of several petitions that have been consolidated in response to Maraga’s controversial advisory. The case revolves around the implementation of the two-thirds gender rule, a constitutional provision that mandates that no more than two-thirds of the members of either the National Assembly or the Senate can be of the same gender. This rule was meant to foster gender balance in Kenya’s political representation, yet despite its inclusion in the Constitution, Parliament has failed to enact the necessary laws to enforce it.
In his advisory, Maraga argued that Parliament’s failure to pass the law was a violation of the Constitution and recommended the dissolution of Parliament as a remedy. He cited the National Assembly and Senate’s inability to pass the law as a key reason for his suggestion. According to Maraga, the legislature had been given sufficient time to comply with the provision but had failed to act. As a result, he advised President Uhuru Kenyatta to dissolve Parliament, which would lead to new elections, potentially allowing for the formation of a legislature more in line with the two-thirds gender principle.
However, Maraga’s advisory was met with strong resistance. Ten petitions were filed, challenging the validity of his recommendation, arguing that the President did not have the constitutional power to dissolve Parliament in this context. These petitions have since been consolidated into one case, which has become a critical point of legal contention.
The National Assembly and Senate are among the parties challenging Maraga’s advisory, asserting that the President was not obliged to dissolve Parliament merely because the two-thirds gender rule had not been implemented. They argue that the constitutional provision is not a mandate that immediately necessitates such a drastic measure, and that Parliament had made efforts, including the introduction of bills aimed at addressing gender equity, though they had not succeeded in passing them.
For many, the legal battle touches on broader issues of gender equality and the implementation of constitutional provisions. While the two-thirds gender rule has been a long-standing debate in Kenyan politics, this case could serve as a landmark decision on how the judiciary interprets the Constitution in the face of legislative inaction. If the court upholds Maraga’s advisory, it could set a precedent for how failures to comply with constitutional requirements are addressed, particularly in terms of the dissolution of Parliament.
At the heart of the case is a fundamental question of how the Constitution is interpreted and applied when key principles are not implemented. The two-thirds gender rule was part of the 2010 Constitution, aimed at promoting gender equality, but its implementation has proven elusive due to political resistance and legislative gridlock.
The outcome of today’s hearings could have far-reaching consequences not just for the two-thirds gender rule but for the relationship between the judiciary, the legislature, and the executive in Kenya’s constitutional framework. It will also signal how seriously the courts take the enforcement of gender equity in political representation.
With such significant constitutional issues at stake, the public and legal observers alike will be watching closely as the case progresses through the courts. The legal community hopes for a resolution that will clarify the path forward for the two-thirds gender rule and for broader efforts to ensure women’s voices are adequately represented in Kenya’s political landscape.
