Ahead of upcoming elections in Kenya, legislators have failed to enact a gender law mandated by the country’s high court.
In March, high court judge John Mativo ordered the Kenyan parliament to implement a two-thirds gender rule within 60 days. In his ruling, Mativo said that, if parliament failed to enact the rule, citizens could petition the court to have the chief justice advise the president to dissolve parliament, triggering an election.
Despite this ruling, the National Assembly once again failed to pass the legislation and adjourned indefinitely on June 15 to allow members to start campaigning ahead of the August 8 general election.
With the parliament adjourned, it seems unlikely it will be dissolved before the polls, as the consequence would be the same – the holding of an election. But activists say a dissolution would send a strong message about the importance of the judiciary and the constitution.
The law stipulates that not more than two-thirds of the members of elected public bodies should be of the same gender, as prescribed by the 2010 constitution. The constitution further directs the government to develop and pass laws, including affirmative action programs, to achieve this goal.
Currently, women make up only 19 percent of the Kenyan National Assembly and 27 percent of the Senate.
Petitioners of the court case, the Centre for Rights Education and Awareness, Community Advocacy and Awareness Trust and the Kenya National Commission on Human Rights, had already faulted Kenyan legislators for failing to enact the legislation by a previously set deadline in 2015.
Mbeti Michuki, legal counsel and program officer at the Federation of Women Lawyers, which was an interested party to the case, criticizes parliament for failing to execute the decision and for “disregarding the constitution.”
Women & Girls sat down with Michuki to discuss the ruling and possible next steps to ensure the law is realized.
Women & Girls: How did parliament respond to the judgment and deadline set for implementation?
Mbeti Michuki: Unfortunately nothing came of the 60-day deadline; in fact one of the respondents to the case, the National Assembly, has appealed the decision made by the high court.
Women & Girls: What message does this response send to the public?
Michuki: First, this is a clear disregard for judicial orders. And second, it [shows] a disregard for the constitution. Considering that this is coming from our lawmakers and [considering] that our constitution, which is the supreme law of the land, is being disregarded in such a way, it is a huge disappointment.
Women & Girls: Why has this two-thirds gender rule proven so difficult to implement?
Michuki: One of the reasons that has been given by M.P.s is the increased financial burden on the citizens, as its implementation will result in an increase in the number of nominated members of parliament. However, I think the failure is not necessarily because it would increase the financial load, but rather the lack of will to implement the rule.
Women & Girls: At this point what is the best way forward for the petitioners?
Michuki: Since the 60 days has lapsed, the petitioners are in the process of discussing the best possible response. We need to understand what will happen in the interim, [if] parliament is dissolved.
Women & Girls: Seeing as parliament has adjourned indefinitely, do you think dissolution would make a difference?
Michuki: It will definitely have an effect. On the part of the judiciary, it will send a clear message that judicial orders are not issued in a vacuum and that they need to be implemented. It will also uphold the respect there is for judicial rulings.
Second, if parliament is actually dissolved, it will be an indication that the constitution is not just a piece of paper, it rules the country and no one is above the constitution. I think it will be a good step as it will lead to more conscious action to have this rule realized. Even the incoming parliamentarians would now have to take this rule seriously.
Women & Girls: Why is affirmative action so important in achieving gender equality?
Michuki: I don’t even think it’s affirmative action that is important; it is more about inequality. The need for affirmative action comes in acknowledging that we have an inequality problem and goes a bit further in saying this is how we can resolve that problem. This is how we will treat inequalities and make equity and equality the norm.
This conversation has been edited for length and clarity.