In an unprecedented and unexpected move, the Chief Justice, on 21st September 2020, sent out an advisory to the President, advising him to dissolve the Parliament for failure to ‘enact the legislation required to implement the two-thirds gender rule.’ The said rule, as provided for in the Constitution of Kenya, 2010, sought to cure a historical anomaly in gender participation in the country’s governance; both elective and appointive positions. Prior to the Advisory, a total of six petitions had been lodged with the Chief Justice, petitioning him to advise the President to dissolve the Parliament for failing to comply with four court orders that directed the Legislature to pass legislation to remedy the disparity. The said legislation would engender the realization of key Constitutional provisions, including; Article 27 (3) which provides that; ‘(W)omen and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social sphere.’; Article 81 (b), providing that ‘not more than two-thirds of the members of elective public bodies shall be of the same gender’ and Article 100(a), providing that ‘Parliament shall enact legislation to promote the representation in Parliament of (a) women.’
The advisory has predictably divided opinion, with sections declaring support while others expressing reservation. Not long after the advisory was issued, the Speaker of the National Assembly issued a statement arguing that the advisory was unrealistic. The Parliamentary Service Commission (PSC), under the leadership of the National Assembly Speaker, resolved to challenge the advisory at the High Court. Yet others, including some sitting Members of Parliament and sections of the Civil Society, expressed support calling on the President to move with speed and dissolve the Parliament to allow for its reconstitution through a fresh election. Each side of the divide has sought to justify its respective position. Opponents of the advisory have for instance argued that there is no guarantee that going back to the election would return a gender compliant Parliament. Some suggest that such a move does in fact portend the risk of worsening the disparity, almost certainly at the expense of women. On the other hand, proponents argue that the Chief Justice’s move engenders constructive chaos that would prompt a serious look at securing redress. Further, they note that various models have been suggested before that could practically offer a solution to the problem.
Despite the differences and rifts occasioned by the September 21st advisory, one thing is at least undisputable; the constitution of the Parliament is non-compliant. Further, there is a broad understanding that moving forward, the society must embrace and mainstream real sense of inclusion that discriminates none on the basis of physical attributes, gender no less. As captured in the Constitution, discrimination, in any way, must be part of our fabric. It must forever be consigned to our past without any option of resuscitating it back to life. To achieve gender parity, we may be better guided by best practices outside our borders, where such aspirations have been brought to reality. Every ounce of effort must be geared toward the realization of the gender parity goal.