STATEMENT ON IMPLEMENTATION OF THE NOT MORE THAN TWO-THIRDS GENDER PRINCIPLE

The National Gender and Equality Commission (NGEC) is seized of the ongoing national debate regarding the possible dissolution of Parliament following the advisory dated September 21, 2020 by the Chief Justice and President of the Supreme Court of Kenya Hon. David Maraga to His Excellency Uhuru Kenyatta, President and Commander in Chief of the Defence Forces of Kenya on account of Parliament’s failure to pass a legislation to provide a mechanism for the realization of the not more than two-thirds gender principle as envisioned in the Constitution of Kenya, 2010 and complimented by past court decisions.

The Commission is further aware that on Thursday September 24, 2020 the High Court suspended the implementation of the advisory pending the hearing and determination of a petition filed by two Kenyans challenging the advisory. Under the circumstances, the Commission is deeply constrained in commenting on a matter that is already before the court but wishes to make the following observations:

1. The ensuing crisis was avoidable from the outset had the political class been more circumspect and alive to the dire consequences of non-compliance with what was and still is a constitutional imperative. The Commission is on record as having taken strenuous measures to advise and facilitate the development of a framework for the realization of the not more than two-thirds gender principle.
2. Having chaired the Technical Working Group that brought a bipartisan approach to develop a practicable formula, the Commission regrets that its efforts and those of other progressive stakeholders were neutered on the floor of the House multiple times when Parliament failed to raise quorum to vote for the  previous Bills on this matter. Consequently, the provisions of Article 261 of the Constitution of Kenya, 2010 have come to crystallize in a dramatic and almost tragic fashion.
3. The entire sessions of the Technical Working Group are documented in a report published by the Commission titled: Journey to Gender Parity in Political Representation: Search of a framework for the realization of the not more than two-thirds gender principle in Kenya. The report provides valuable insights to other actors at the local, regional and international levels as well as in comparable jurisdictions on the strategies to employ and the pitfalls to avoid. The report is available on the Commission’s website: https://www.ngeckenya.org/Downloads/Journey-to-Gender-Parity-in-Politcal-Representation.pdf

In view of the unprecedented situation, the Commission wishes to state as follows:

1. The advisory to dissolve Parliament for failing to enact a law for the realization of the not more than two-thirds gender principle is legitimate, appropriate and consistent with the contemplated due process. We laud the Chief Justice Hon. David Maraga for taking a bold step in the discharge of his constitutional duties. With the matter now back to court, we await the outcome of the court process but urge expedited action owing to the immense public interest and anxiety it has generated.
2. The journey started by the National Gender and Equality Commission (NGEC) in the search for a practicable formula for the implementation of the not more than two-thirds gender principle has generat­ed ready Bills that Parliament can draw from and give the country a working doc­ument as ordered by Hon. Justice Mativo on March 29, 2017.
3. Parliament bears the responsibility of unlocking the stalemate that has now precipitated a constitutional crisis. We urge the Members of Parliament to rise up to the occasion and deliver a framework for the realization of the not more than two-thirds gender principle as an urgent matter of national duty.
4. That a bipartisan political muscle is urgently required to support Parliament in their efforts towards providing our beloved country with a legal framework to immediately guide the implementation of the not more than two-thirds gender principle.

As a Constitutional Commission guided by Article 249 (1)(c) of the Constitution of Kenya 2010 on promoting constitutionalism and mandated to ensure gender equality and non-discrimination we urge all the parties involved in this matter to adhere to the Constitution of Kenya, 2010, which they swore to protect as they took their respective offices.

DR. JOYCE M. MUTINDA (PhD).

CHAIRPERSON