The Two-Thirds Gender Rule Is About All of Us

The Two-Thirds Gender Rule Is About All of Us

On the 21st of September 2020, President of the Supreme Court and Chief Justice, David Maraga rendered an advisory to President Kenyatta to dissolve parliament and set about preparing for new polls after the legislature had been found to be unconstitutional for failure to comply with the two-thirds gender rule. 

The aftermath of the highly consequential ruling has seen a plethora of legal sophistry brought to bear on what is actually a simple constitutional provision that forced Chief Justice Maraga’s hand. In his instruction to the President, Maraga explained that he acted following six petitions filed pursuant to Article 261 (7) of the Constitution. 

Said he: “It is incontestable that Parliament has not complied with the High Court order, as such, for over nine years now… Parliament has not enacted the legislation required to implement the two-thirds gender rule which, as the court of Appeal observed in its said judgement, it is clear testimony of Parliament’s lackadaisical attitude and conduct in this matter. Consequently, it is my constitutional duty to advise Your Excellency to dissolve Parliament under Article 261 (7) of the Constitution.”

Fidelity to the constitution is Kenya’s only choice going forward. We forget quickly that we promulgated the current constitution after decades of painful struggle which culminated in a near civil war in 2007/8. It was this horrific episode of violence after yet another rigged election whose blood watered the ground in which we planted, nurtured and have slowly seen our current constitution grow since 2010. And yet over the last decade, it has become clear that while our new constitution, and the Supreme Court it brought into being, are like the modern motorised vehicle, pulling behind it is the mkokoteni and wheelbarrow of our legislature and political elite.  The strain is clear on the Katiba and the Supreme Court, yet they are essential to governance in Kenya. Failure is not an option.

The disconnect between the Judiciary and Executive has been stark almost since promulgation of the constitution in 2010. We fear that the ‘revisiting’ the president promised against the judiciary in September 2017 after his election was nullified by the Supreme Court continues with no end in sight. 

The petulance and recklessness of this dangerous game of ping pong with our governance institutions is clear for all to see. It raises questions on whether the current ruling elite appreciates that while the disastrous elections of 2017 shredded their legitimacy to govern Kenya, this latest edict on the two-thirds gender rule undermines the legitimacy of the President, Parliament and entire elite even more. This is not a situation that lends itself to sustained stability and prosperity of our country. 

There are those who seek to present this two-thirds gender ruling as a ‘women’s issue’. There have even been arguments that since Kenya already has Women’s Representatives Seats in parliament, there is no need to comply with the two-thirds gender rule. In truth, the two-thirds gender rule is not only about women. It is derived out of the spirit and provisions of the constitution aimed at creating an equitable society in Kenya and mitigating the stark inequalities that have all too often in our history been mobilised, ethnicised and weaponised by sections of the elite for their immediate political and commercial ends, especially around elections. 

In truth, outside pockets of Central Kenya, the Rift Valley and the larger urban areas; and given that 75 percent of our population is below the age of 35 – the disadvantaged and marginalised in Kenya constitute a majority of our people. It is simply that case that the majority of our marginalised population (over 50 percent of them) are women and a society is judged a by the way it treats its marginalised. And while our women may be the largest marginalised group in Kenya, they are our primarily agricultural producers, do most of the work in our society and are the glue that holds the Nation together. 

Kenya has an unfortunate history of visiting disproportionate violence upon; and, denying economic opportunity and access to justice to marginalised communities. The country’s politically violent episodes are born partly out of this unfortunate history. The 2010 constitution, derived as it was out of a nationwide consultative process, was aimed at rebooting our relations with each another, and between us and the State. It is in this light that the two-thirds gender rule should be understood. Article 56 of the constitution demands that the state put in place such affirmative action measures as to enable minorities and marginalised communities, inter alia to participate and be represented in governance and other spheres of life. 

All the signs are that the current illegitimate ruling elite will do everything they can to avoid complying with the two-thirds gender provision of our constitution despite the edict from Chief Justice Maraga. This is not only unfortunate but another blow to good governance in Kenya. It also marks Uhuru Kenyatta down as the leader with the greatest and most consistently expressed contempt for constitutionalism in our history. Given the corruption, incompetence and outright theft that his regime has overseen since 2013 then this shall truly be his sorry legacy. 

The failure of the 11th and 12th Parliament to formulate laws to ensure their compliance with the two-thirds gender rule is also the failure of the Presidency of Uhuru Muigai Kenyatta and William Samoei Ruto. We have all seen the speed and efficiency with which the Presidency has acted to ensure passage of retrogressive laws by the two parliaments. Their failure to act in the national interest on the two-thirds constitutional gender rule places the Presidency on the same list of shame and failure as the 12th Parliament. Therefore, as we rally with the advisory of the Chief Justice for the dissolution of the 12th Parliament, we also call on the Presidency to vacate office together with their accomplices in Parliament. A Parliament and Presidency that are so incurably anti-constitutionalism, so flagrantly anti-people and chronically unpatriotic automatically lose their legitimacy in public office.   

We call on all Kenyans of goodwill who don’t wish to see their Nation torn asunder through the greed of a self-serving ruling elite to support us in our effort to implement the Constitution of Kenya and to sweep away the current cast of cynical tribal warlords and merchants masquerading as leaders from public office.