Mombasa Kenya Apr 26 – National Assembly Majority Leader Aden Duale has scolded the courts for imposing timelines on the passage of the Two Thirds Gender Bill noting that the judgement issued was ill advised and not well thought out.
Duale who recently sponsored the Bill on the floor of the House but was rejected again for a record fourth time has criticized the courts decision that Parliament risks to be dissolved if it does not pass the law.
The Garissa Township lawmaker says under the Fifth Schedule of the Bill of Rights, their are no specific timeliness that Parliament has been given to fast track the passage and adoption of the Two Thirds Gender Bill that seeks to give women parliamentarians more seats in the House.
“The law is very clear on this one. Those having a different version can as well take their time and look at the legal documents,” he said.
MPs had challenged a decision of the High Court, which faulted them for not enacting the gender principle, which requires that not more than two-thirds of appointive and elective positions shall of the same gender.
Three judges of the Appellate court said the appeal by Speakers of the two Houses and the Attorney General, lacked merit.
Justices Philip Waki, Gatembu Kairu and Kathurima M’Inoti acknowledged efforts by Parliament to implement the gender principle but said the requirement has never been put into serious consideration.
“It is equally a matter of public notoriety, which we are entitled to take judicial notice of, that none of those amendment bills, has never been debated or considered by Parliament seriously. They all have been lost due to lack of quorum in the National Assembly,” the Judges said in their ruling.
In March 2017, High Court Judge John Mativo gave the MPs 60 days to enact a law to comply with the constitutional requirement.
The Judge said after the lapse of the 60 days, any Kenyan was free to petition the Chief Justice David Maraga to advise President Kenyatta to dissolve Parliament.
“I am satisfied that that the first and second respondents have failed, refused and or neglected to perform their constitutional mandate prescribed in the constitution,” the Judge ruled.
In the case, Centre for Rights Education and Awareness (CREW) and Community Advocacy and Awareness Trust (Crawn Trust) moved to court seeking a declaration that the failure by Parliament to enact legislation to comply with not-more-than two-thirds gender principle, is a violation of women rights and the constitution.
The organisations said women have suffered marginalization and exclusion from electoral and political processes for a long time.
It is there case that the women have not heard effective and meaningful representation and participation in political decision making processes.
This marginalization, however, was cured by the new constitution, which provides mechanism for an inclusive framework for participation in the electoral and political decision making processes by marginalized groups, including women.
In 2012, the Supreme Court directed the state to take legislative and other measures including affirmative action programmes, designed to redress any disadvantage suffered by individual groups.
By a majority decision, the Judges said this mechanism should be in place on or before August 27, 2015.
The period, however, lapsed without Parliament enacting the necessary legislation to implement the two-thirds gender principle.
The period was extended by another one year but nothing happened.
The groups moved to court in September 2016 and the High Court agreed with them that the failure by Parliament to enact the said legislation within the specified period was a violation of the constitution.
Parliament was directed to do so within 60 days, but again, MPs went on recess without passing the legislation.
Currently, there are only 22 elected MPs, yet the rule requires women to be at least 117 members. The 22 plus the 47 women representatives and 12 slots for MPs nominated by political parties would bring the number to 76, making a shortfall of 41 women MPs.
In the Senate, women should make up to 23 members but only three were elected and 16 were nominated, one youth and representative of persons with disabilities, bringing the number to 21, remaining with a shortfall of 2.
The groups argued that Parliament must comply with the terms of the constitution and the failure to meet the constitutional threshold both in the National Assembly and Senate, precipitates a