Our now decade-old Constitution treats its own execution and enforcement with extravagant coercive measures crafted to leave no room for anything short of its full implementation. This overdose of prudence is proving to have been well warranted.
With the benefit of hindsight, the drafters were right. President Uhuru Kenyatta must surely, on occasion at least, feel the full weight of the Bible he held aloft while taking a most solemn oath swearing to uphold the Constitution. He also seems not keen to fulfill the Jubilee Party’s pre-election manifesto pledge to enforce the two-thirds gender rule.
The devil, they say, is in the detail. Article 27 (8) of the Constitution provides that “the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.” For those 10 years, Parliament has declined to enact the enabling laws.
Leaving nothing to chance, Article 261 proceeds that should Parliament fail to pass the needed laws within the specified time, any person may petition the High Court on the matter. The court would then direct Parliament and the Attorney-General to pass the required law and report back to the Chief Justice. Clause 7 says: “If Parliament fails to enact legislation in accordance with an order under Clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.”
Much has come to pass. Parliament failed to pass gender equality laws within the deadline; the Centre for Rights and Education and Awareness (Creaw) successfully petitioned the High Court in 2017 on the matter; the Attorney-General’s office lost a defeatist time-sapping appeal; and the court duly ordered the National Assembly to craft laws that would enable implementation of the two-thirds gender rule but it paid no heed.
In April last year, activist Margaret Toili filed a petition at the Chief Justice’s office seeking to dissolve Parliament. The Law Society of Kenya (LSK) is also now blowing the whistle.
However, the Constitution actually does not require any further petition after the High Court process. The Chief Justice, under Article 261(7), ought to take ‘judicial notice’ of Parliament’s failure to comply with the court order and advise the President to dissolve Parliament. The Constitution provides that the President must then dissolve parliament.
Which brings us to where the buck must stop. The Office of the President, in which is vested the ‘other measures’ stated in Article 27 (8), has, lamentably, led by lagging.
The Executive, over which it enjoys complete control, is itself unconstitutionally constituted. The two-third gender rule is flagrantly violated.
Sample this: There are only seven women (instead of the legal 15) out of a total 44 principal secretaries. Chief administrative secretary positions have nine women out of 29, which is also unconstitutional. For purposes of puffery and frontage, the Cabinet complies at seven women out of 21 Cabinet Secretaries.
We, parliamentarians, have it on good authority that, had there been a provision to increase our salaries, it would not be languishing a decade later.
As a legislator, I have sponsored a bill to bring to bear the two-thirds gender rule within the legislature, it has been brutally suppressed and frustrated.
I can, with clear conscience, support the constitutionally required dissolution of Parliament in such circumstances. We, too, have failed to observe our oath of office to obey, respect, uphold, preserve, protect and defend the Constitution of the Republic of Kenya.
Constitutional matters are stark and binary. Relative to the Constitution, you can be categorised only as saint or sinner, champion or charlatan. You either defend and uphold the supreme law or subvert and undermine it.
Without ambivalence, the Legislature has sabotaged the implementation of the Constitution and must be accordingly dispatched.
The writer Gladys Boss Shollei is the Uasin County Woman MP
This article first appeared on the Daily Nation