, NAIROBI, Kenya, Mar 29 – High Court Judge John Mativo pulled no punches on Wednesday when he found Parliament guilty of abdicating its constitutional duty to Kenyans in failing to enact legislation to bring into effect the two-thirds gender principle within its precincts.
Mativo did however extend the legislators a 60 day lifeline to either enact the requisite law or risk dissolution.
“An order of mandamus be and is hereby issued directing Parliament and the Honourable Attorney General to take steps to ensure that the requisite legislation is enacted within a period of 60 days from the date of this order and to report the progress to the Chief Justice.”
He also gave the green light to commence the process of dissolving Parliament should it fail to meet the 60-day deadline.
“If Parliament fails to enact the said legislation within the said period of 60 days from the date of this order, the petitioners or any other person shall be at liberty to petition the Honourable the Chief Justice to advise the President to dissolve Parliament.”
Mativo thereby granted the relief sought by the Kenya Human Rights Commission (KHRC), Centre for Rights Education and Awareness (CREAW), Community Advocacy and Awareness Trust (CRAWN TRUST) and Kenya National Commission on Human Rights (KNCHR).
The petitioners, who moved to court under Article 261 of the Constitution, welcomed the ruling using the words, “progressive,” and, “historic,” to describe it.
Mativo used much less kinder words to describe Parliament’s failure to meet the timelines set out in the Constitution – where the two-thirds gender principle is concerned – such as an, “unacceptable,” “gross violation,” and, “blatant breach,” of the Constitution.
He similarly dismissed the defence put up by the Speakers of both Houses disagreeing with them that res judicata applied in the present case by finding that the issues raised in a similar petition that was heard by Justice Mumbi Ngugi were different from those before him and therefore yet to be determined.
The case that was placed before Lady Justice Mumbi Ngugi was in regards to a failure by the Attorney General and Commission for the Implementation of the Constitution to adequately facilitate the enactment of legislation to ensure compliance with the two-thirds gender principle given Article 261(4) of the Constitution stipulates that:
“The Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.”
And just like Mativo, Lady Justice Ngugi pulled no punches in her assessment of the Attorney General and CIC’s performance in the above respect; finding them to have, “dropped the ball.”
This time round however, Mativo found that the blame lay not with the Attorney General but, “squarely on the doorstep of Parliament.”
The Chairman of the Independent Electoral and Boundaries Commission Wafula Chebukati had himself raised concern that the legitimacy of Parliament could be challenged post the August General Election for failure to meet the Constitutional requirement that no more than two-thirds of its members should be of the same gender.
In December of 2012, the Supreme Court declared that: “We are of the majority opinion that legislative measures for giving effect to the one third to two thirds gender principle under Article 81 (b) of the Constitution in relation to the National Assembly and the Senate should be taken by the 27th of August 2015.”
A deadline which the Houses extended by invoking Article 261(2) of the Constitution which states: “the National Assembly may, by resolution supported by the votes of at least two-thirds of all the members of the National Assembly, extend the period prescribed in respect of any particular matter under clause (1), by a period not exceeding one year.”