In the Chief Justice’s advice to the President, Kenya’s current Chief Justice David Kenani Maraga has advised the President to dissolve parliament for failing to enact legislation that ensures gender equality as guaranteed under the Kenyan Constitution.

Constitutional bases for the petition

Article 27(8) of the Kenyan Constitution requires the State to take legislative and other measures to implement the principle that not more than two-thirds of the members of elective and appointive bodies shall be of the same gender. This is supported by Article 81(b) that requires electoral systems to comply with the principle that “not more than two-thirds of the members
of elective public bodies shall be of the same gender” and Article 100 which directs parliament to “enact legislation to promote the representation in Parliament of’ amongst others, “women”.

The Petitioners’ case

The advisory was precipitated by six petitions that asked the Chief Justice to advise the Kenyan President to dissolve parliament based on its failure to adhere to the above constitutional requirements within the stipulated time frame of five years as per Article 261(1) as read with the Fifth Schedule. This was despite court rulings in 2012, 2015 and 2017compelling parliament to enact the relevant legislation as well as enquiries by the Chief Justice on the progress of their enactment.

It is on these bases that the petitioners argued that the Chief Justice should, pursuant to Article 261(7), advice the president to dissolve parliament. In response to the petitions, the Chief Justice issue summons upon parliament and the Attorney General.

The Respondents’ arguments

In response to the summons, the Speakers to the National Assembly and the Senate presented three key arguments. First, that it was impossible to give effect to the two thirds gender rule without violating citizens’ political rights under Article 38(3) (the right to vote for candidates of one’s own choice and vie for any public elective positions), because Articles 97 and 98 had set a ceiling on the composition of the two houses. Second, that the Chief Justice’s advice to the President to dissolve Parliament would trigger a constitutional crisis, as it would stall essential Parliamentary roles such as oversight, vetting of state officers and passing of budgets. Lastly, that the previous constitutional orders compelling parliament to enact legislation were directed to the 11^th Parliament and not the current one. Consequently, the Chief Justice had no jurisdiction to entertain the current petition.

The Chief Justice’s verdict

The Chief Justice found that Article 261(7) limited his role to that of ascertaining whether Parliament had met its legislative obligations. This entailed a two-part test: ascertaining whether there is a valid court order concerning parliament’s failure to timeously enact any particular legislation, and ascertaining whether the said order has been complied with. If Parliament was not in compliance with the order, then the law only afforded the Chief Justice one recourse – to advise the President to dissolve Parliament.

He further held that the obligation under Article 261(5) to enact the requisite legislation and court orders from the 2017 Petition were directed to Parliament as an institution, and not to the 11th Parliament as argued by the Speakers.

As to the possibility of a constitutional crisis resulting from dissolution of parliament, it was held that while dissolution of parliament would undoubtedly result in inconveniences and economic hardship, this was the intended result by Kenyan citizens, as they were aware of the consequences of Article 261, and understood the possible cultural resistance to the transformational ideas on gender equality enshrined under the Constitution.

Options available to the president

The remaining part of Article 261(7) further stipulates that the president shall dissolve Parliament upon advise from the Chief Justice. According to Republic v. Council for Legal Education, the word ‘shall’ imports a form of command. Article 261(7) is therefore couched in mandatory terms and must be complied. This means that the President cannot exercise discretion but ought to dissolve Parliament on the Chief Justice’s advice.

There has long been a tussle between the executive and the judiciary, with the former having failed to obey orders by the court. Much of the bad blood between the two institutions stems from the judiciary’s nullification of the 2017 Presidential elections, with the president promising to revisit the judiciary and fix it.