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Back to the drawing board on art. 100 and two thirds gender bills

On February 27, 2019, the two thirds gender bill was lost following a quorum hitch in parliament despite sustained lobbying initiative to marshal the numbers. This was the fourth time in as many attempts to pass the bill. The defeat of the bill was a major setback to the Commission since a great deal of efforts and resources had been expended in the search and development of a framework to implement the not more than two thirds gender principle in National Assembly and Senate.

In a statement issued to the press shortly after the bill was lost, Chairperson Dr. Joyce Mutinda regretted the outcome saying the loss only served to exacerbate the gender imbalance that pervaded the 11th and now the 12th Parliament despite a clear advisory by the Supreme Court of Kenya that Parliament must ensure a framework was in place by August 27, 2015.

The Supreme Court in SC Advisory No 2 of 2012 ruled that legislation to facilitate implementation of the "....not more than two thirds..." gender principle falls under the category of legislation that must be implemented within five years of promulgation that is on or before the 27th August 2015. The court thus directed that any legislation and legislative measures to give effect to the two thirds gender principle under Article 81 (b) of the constitution and in relation to the National Assembly and the Senate should be attained by the 27th August 2015 according to the terms of Article 100 on the promotion of representation of the marginalized group.


In the same matter the court used Article 100 on promotion of representation of marginalized groups to set the time frame of 27th August, 2015 for the timeframe to be in place. Article 100 of the Constitution provides that Parliament shall enact legislation to promote the representation in parliament of women, persons with disabilities, youth, ethnic and other minorities and marginalized communities. In the fifth schedule the Article 100 legislation has a time frame of 5 years. To date, these two legislations are yet to be enacted.

This week the Constitutional Implementation and Oversight Committee of Parliament chaired by Ndaragwa legislator Hon. Jeremiah Kioni invited the Commission to make submissions on the implementation of article 100.  Opinion remains divided as to the realization of the not more than two thirds gender principle with robust views going for immediate while others for progressive realization.

There is still the option of petitioning the Supreme court to find that the National Assembly and Senate unconstitutional and therefore advise the President to dissolve parliament. However, this rather radical proposal remains untested.



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