NAIROBI, Kenya, Jun 26 – Justice Mumbi Ngugi had no kind words for the Attorney General and the Commission for the Implementation of the Constitution on Friday when she delivered her judgement on the two-thirds gender rule.
She found that the AG and CIC had, ‘dropped the ball’ and demonstrated, ‘laxity and reluctance’ in preparing legislation for tabling in Parliament that would see the Constitutional requirement that no more than two thirds of elective and appointive bodies are composed of the same gender, realised.
The AG she said, had waited until the ‘last minute’ to set in motion mechanisms toward the drafting of a bill and the CIC, she said, ‘attempted to wash their hands’ of the failure to meet the August 27 deadline set by the Supreme Court in December of 2012.
Parliament, she said, was not exempt from blame either as the Constitution Implementation Oversight Committee had abdicated its oversight role in failing to ensure the legislation setting out how the two-thirds gender rule would be realised in Parliament, was in place within five years of the promulgation of the Constitution as set out in the fifth schedule of the Constitution.
And while the August 27, 2015 deadline may not have passed in actuality, the AG and CIC she found, had violated their obligation to ensure the relevant bill was in place ‘as soon as is reasonable and practicable’ as the Supreme Court had required of them in its December 2012 advisory opinion.
They, she said, had therefore threatened to violate Article 27(8) and 81(b) of the Constitution which set out the two-thirds gender rule.
Ensuing from the above, she ordered the AG and CIC to have the relevant bill prepared for tabling in Parliament within 40 days.
And while she acquiesced that the Constitution gave Parliament the option of postponing enactment by a year, she also noted that it should use that power, ‘only in exceptional circumstances.’
And the situation at hand, she found, wasn’t exceptional as the Supreme Court gave its advisory opinion more than two years ago.
Even so, she said, she could not presume to decide for Parliament what did or did not qualify as an exceptional circumstance.
She did however decline to entertain an application by the adversely mentioned parties to stay her judgement by 10 days. “We’re already short of time,” she said.
Ngugi delivered her judgement on a petition filed by the Centre for Rights Education and Awareness accusing the AG and CIC of lacking the will to see legislation guiding the implementation of the two-thirds gender rule in Parliament in place by August 27, 2015. “Enactment is a process that on average takes 90 days. That means the AG and CIC should have had a bill ready by April,” Executive Director Wangechi Wachira-Moegi argued.