National Assembly Speaker Justin Muturi. (Photo: Moses Omusula, Standard)
When Justice John Mativo slapped MPs with a 60-day ultimatum to either pass laws to implement the two-thirds gender rule or go home, women celebrated.
However, MPs and parliamentary staff familiar with the arithmetic around the mechanics of such a legislation saw a legislative nightmare. The urgency on the matter was emphasised when President Uhuru Kenyatta, while mourning his elder sister, Margaret, asked the two Houses of Parliament to expedite the legislation.
The presidential plea and the parliamentary razzmatazz around the legislation is not new. It has happened at least three times, and failed. Then there’s the narcissistic self-importance that MPs have. They do not understand how the Judiciary can tell them to make laws — they actually do, but they are never used to deadlines cast in stone, legally speaking. They shifted the constitutional deadline twice.
According to Katiba Institute, an organisation that promotes constitutionalism in Kenya, the MPs engaged in “parliamentary mischief”, at times, with “intent to sabotage” implementation of the two-thirds gender principle.
“…despite a choreographed one-year extension, Parliament still had the two-thirds business on its legislative back burner, not steaming but just there. Cold, forgotten,” notes a brief of the Institute seen by Sunday Standard.
Both President Kenyatta and opposition chief Raila Odinga are indicted for failing to “mobilise their parliamentary troops” to make sure the laws to support the rule were enacted.
A look at parliamentary records show open reluctance, bordering on defiance, to Justice Mativo’s ruling.
Majority Leader Aden Duale (Garissa Township), Deputy Minority Whip Chris Wamalwa (Kiminini), senior lawyer Olago Aluoch (Kisumu West) and Dr Eseli Simiyu (Tongaren) don’t see how MPs can meet the deadline.
Duale said, in the 11th Parliament, he had tried to enact the laws and failed, and for now, he was busy with campaigns, and was unlikely to bring such legislation.
“With the time that is remaining before we get to the end of this Parliament, if I reintroduce that Bill in the House, I will end up losing my seat as Member of Parliament. This is because come next month, I need to go back to my constituency to campaign and this applies to all other Members,” said Duale a day after the ruling.
He added: He (Justice Mativo) cannot direct, dictate or blackmail us on how legislations should be done. It is for the people of Kenya to decide how any legislation shall be done.”
For Duale, it is up to Kenyan voters to vote in more women on election day. But he appeared to question whether it was wise in the first place to have such a law, that even the First World countries didn’t have in their statutes.
Hard to enforce
To Wamalwa and Eseli, that law would be difficult to implement unless there is a supporting amendment to the Constitution. “This will require a review of very many statutes, including the Constitution. It is virtually impossible for us to meet the two-thirds gender rule. If it were proportional representation, it would be possible,” said Eseli.
Olago, who has been the Judiciary’s foremost defender in the corridors of Parliament dismissed the 60-day ultimatum and the whole ruling as “worthless”.
Olago told his colleagues to ignore the ultimatum, go on as if it doesn’t exist and wait… there shall be no dissolution.
“That judgement, without disparaging the judge, is worthless. It is not capable of being enforced in law. I ask any lawyer who is in this House to go and look at the law and Constitution properly and you will find that judgement cannot be enforced. Therefore, there is nothing to worry about. Do not even talk about Parliament be in dissolved. It cannot. Members, rest assured that there is nothing to worry about, because that judgement is not worth it,” said Olago in the House.
Speaker Justin Muturi listened to the MPs as they raised their concerns and warned them that the Constitution was very clear that they either enact the law or the Judiciary will send them home. Muturi reminded the MPs that he and his Senate counterpart Ekwee Ethuro had no vote, and therefore they had no role to play in implementing the ruling.
“There is a judgement. You make what you may out of it but the process is provided for under Clause 7 of Article 261 in the event of no action. We do not need to get excited about this matter. It is very simple.
It is up to you, as Members of Parliament, and the Attorney-General, to propose a legislation which will attempt, at the very worst, to meet the requirements of the one-third gender rule as provided for in Articles 27 and 81,” said Muturi.
But other MPs such as John Mbadi (Suba), Florence Kajuju (Meru), David Ochieng’ (Ugenya) pleaded with their colleagues to make sure they respect the court or else face the guillotine.