Will six month period deliver affirmative action in Parliament?

Members of women's movement and human rights organisations address the press after the ruling by Justice Mativo. Photo Courtesy
Members of women's movement and human rights organisations address the press after the ruling by Justice Mativo. Photo Courtesy

Women wait with abated breath after High Court ruling on gender two thirds principle

Women leaders and human rights activists have been forced to go back to the drawing board and lobby their supporters in the National Assembly and the Senate following the recent High Court ruling on the gender two thirds rule.

Indeed, the clock is fast ticking towards the six month deadline given to Parliament to pass it or stand dissolved as Kenyans brace for one of the most fiercely contested General Elections where six elective seats are up for grabs. These are the presidential, gubernatorial, Senator’s, County Women representative, Member of Parliament and Members of the County Assembly.

In his ruling, Justice John Mativo noted: “Our system is based upon a secular democratic faith, which in the words of former American President, Abraham Lincoln, is that the government of the people by the people and for the people shall not perish from this world.”


The historic ruling as Kenyans are set to nominate candidates for various political parties was filed by Kenya Human Rights Commission and Federation of Women Lawyers in Kenya (FIDA), which are both non-profit, non-partisan public benefits organisations whose mandate is to create a society that respects and upholds human and women’s rights. The National Gender and Equality Commission (NGEC) and the Law Society of Kenya were enjoined in the case as Amicus curie (friends of the court).

The three respondents were The Kenya National Assembly, The Senate and the Attorney General.

Justice Mativo noted that having heard and read the petitioners’ submissions, his conclusion was that the petition has merit and that the reliefs sought are warranted.

“I am satisfied that the first and second respondents failed, refused and or neglected to perform their constitutional mandate as prescribed in the Constitution. Consequently this petition succeeds. I allow the petition and order as follows: a declaration be and is hereby issued to the National Assembly and the Senate have failed in their joint and separate constitutional obligations to enact legislation necessary to give effect to the principle that no more than two thirds of the members of the National Assembly and the Senate shall be of the same gender.”


The judge further declared that failure by Parliament to enact the legislation as per the Constitution amounts to a violation of the rights of women to equality and freedom from discrimination and a violation of the Constitution.

“An order of mandamus be and is hereby given directing Parliament and the Attorney General to take steps to ensure that the required legislation is enacted within 60 days from the date of this order and to report progress to the Chief Justice. That is further ordered that if Parliament fails to enact the said legislation within the said period from the date of this order, (March 29, 2017), the petitioner or any other person may be at liberty to petition the Chief Justice to advise the President to dissolve Parliament.”

The basic tenets of that faith are embodied in the Constitution which specifically provides Article 2(1) that: “This Constitution is the supreme law of the Republic and binds all persons and all State organs at both national and county government levels.”

The Judiciary has a special role in our system with respect to constitutional interpretation.

The judge noted that the petition resolved around the interpretation and application of the provisions of Article 261 of the Constitution which provides that: “Parliament such enact any legislation required by this Constitution to be enacted to govern a particular matter within the period specified in the Fifth Schedule, commencing on the effective date.” It also provides that despite Clause (1), the National Assembly may, by resolution supported by the votes of at least two-thirds of all 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.

But a provision of Article 261 is categorical that: “If Parliament fails to enact any particular legislation within the specific time, any person may petition the High Court on the matter. The High Court in determining a petition under clause (5) may make a declaratory order on the matter; and transmit an order directing Parliament and the Attorney-General, Githu Muigai, to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice David Maraga.

In case 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 act as advised.

If Parliament has been dissolved under clause (7), the new Parliament shall enact the required legislation within the periods specified in the Fifth Schedule beginning with the date of commencement of the term of the new Parliament.

And if the new Parliament also fails to enact legislation in accordance with clause (8), provisions of clauses (1) to (8) shall apply afresh.


Human rights activists and members of the women's movement in court during the hearing of the case on gender two thirds. Photo Courtesy

Human rights activists and members of the women’s movement in court during the hearing of the case on gender two thirds. Photo Courtesy

In his ruling, the judge noted that in this case the clear provisions of Article 100 of the Constitution was relevant on the promotion of representation of marginalised groups named as follows: women; persons with disabilities; youth; ethnic and other minorities; and marginalised communities.

Said Mativo: “I find myself obliged to emphasise that the Kenyan judiciary must guard against the development of a two-tracked system; one that looks like the old cases influenced by the common law, on the one hand, and cases that are decided under the 2010 Constitution’s principles governing exercise of judicial authority.”

In his view, those two tracks are likely to undermine the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution.

“My strong view is judicial review and the exercise of judicial authority is now entrenched in our Constitution and this ought to be reflected in the court decisions and any decision-making process that does not adhere to the constitutional test cannot stand court scrutiny.”

On December 11, 2011, the Supreme Court delivered a majority decision that the realization of the two-thirds gender principle under Article 81 (b) is progressive. In its ruling, the Supreme Court directed that Parliament is under an obligation to have a framework on realization of the two-third Gender Rule by August 27, 2015.

By then the Attorney General had filed a request in the Supreme Court for an advisory opinion as to whether the gender two-thirds principle was to be realised by the first General Elections under the new Constitution, in March 2013, or over a longer period of time progressively.

Parliament failed to meet the deadline stated in the advisory opinion but extended it by one more year, which also lapsed before the required legislation could be passed and that the said period cannot be legally extended, so that window closed.

In his ruling last week, Mativo said: “In my view, having failed, refused and or neglected to implement the measures contemplated under Article 27 and 100, Parliament has failed in its obligation under Article (210 (1) which indicates that the State and every State organ have an obligation to observe, respect, protect, promote and fulfill the right of men and women to equality under Article (27).”