November 22nd 2017

Top Stories / National

Illegal cabinet raises doubts about Uhuru's commitment to constitution

The judge however suspended his decision for a period of eight months on grounds that if the current cabinet was to be disbanded, it would create unnecessary tension especially now that the country is preparing for the 2017 General elections.

By Phillip MuleeWednesday, 21 Dec 2016 17:31 EAT

Kenya could have been thrown into a constitutional crisis yesterday had High Court Judge Justice Joseph Onguto ordered the disbanding of the current cabinet for failing to uphold the two third gender rule. But one wonders what went wrong in the implementation of the new constitution which was enacted in 2010 with affirmative action taking centre stage.

On 28 April and again on 5 May, the National Assembly rejected the Constitution Amendment Bill (No. 4) of 2015, which sought to ensure that the two houses of Parliament (National Assembly and the Senate) would comprise of a membership that is not more than two-thirds of either gender.

The Constitution entrenches the principle of equality and requires the state to adopt affirmative action programmes and policies to “redress any disadvantages suffered by individuals or groups because of past discrimination”. More specifically, it requires that elective and appointive bodies should be composed of “not more than two-thirds of either gender”.

To give effect to this principle, the Constitution requires the provision of such number of special seats “necessary to ensure that not more than two thirds of the membership of the [county] assembly are of the same gender”. In contrast, while the constitution does not exclude the applicability of the two-third-gender principle to the National Assembly and the Senate, the provisions regulating the membership of the two houses do not have provisions to operationalize the principle in these houses.

Justice Onguto on Tuesday ruled that President Uhuru Kenyatta contravened the law by failing to ensure that his cabinet upheld the two third gender rule. The judge however suspended his decision for a period of eight months on grounds that if the current cabinet was to be disbanded, it would create unnecessary tension especially now that the country is preparing for the 2017 General elections.

In the case, the Centre for Rights Education and Awareness moved to court to challenge the composition of the cabinet on grounds that the two third gender rule was not considered. The petitioners argued that the five women in a Cabinet of 23 members violate the constitution’s two-thirds gender requirement. “The Cabinet is composed of 18 men and 5 women - 15 male Cabinet Secretaries, an Attorney General who is male and 5 female Cabinet Secretaries. The composition of the women in the Cabinet is only 5 out of 23, making their composition 21.7 percent of the total,” the petition held.

Article 152(1) of the constitution provides that the Cabinet comprise the President, the Deputy President, the Attorney General and not fewer than 14 and not more than 22 Cabinet Secretaries. In addition to the cabinet failing to uphold the constitutional mandate on two third gender rule, the two houses of Parliament do not comply with the gender requirement.

The National Assembly has a total of 349 members of whom 16 are women directly elected into the constituency seats, 47 women elected to the 47 county women representative seats, and five women among the 12 appointees representing the youth, persons with disabilities and workers. Elected women occupy 5.5% of the 290 constituency seats, while all the women make up 19.5% of the National Assembly. This is short of the two-third-gender ratio by 13.8%. Women constitute 26.9% of the Senate, which is also below the two-third rule. Eighteen of the 20 nominated senators are women. But the Senate does not have any elected woman. 

The debate on the applicability of the two-third-gender principle to the two houses of Parliament began when the laws and regulations for guiding the first (2013) elections under the current constitution were being prepared. In particular, it was not clear whether the gender principle was a minimum that must be applied immediately and that any public elective body that would not meet the minimum gender quota would be unconstitutional. There was argument that, since the provisions on the membership of the two houses do not specifically require the two-third rule, the principle need not be applied immediately. 

To avoid a possible constitutional crisis on the composition of the two houses after the 2013 general elections, and following extensive discussions among governmental and non-governmental stakeholders, the Attorney General (AG) Prof Githu Muigai sought the advisory opinion of the Supreme Court on whether the Constitution requires the implementation of the two-third-gender principle during the 2013 general elections.  Key public institutions and non-state entities and individuals applied to and were admitted as “interested parties” and “Amicus Curiae”. 

The Supreme Court, with a majority opinion with the Chief Justice dissenting, noted that the absence of a specific requirement in relation to the two houses of Parliament implied that, unlike in the case of county assemblies, the two-third-gender principle was amenable only to “progressive realization” in relation to the two houses of Parliament. It could not therefore be enforced immediately. Accordingly, the Court advised that, if measures necessary to crystalize the principle into an enforceable right were not taken before the 2013 elections, the principle would not be applicable to the said elections.

Nevertheless, bearing in mind the constitutional duty to promote the representation of marginalised groups in Parliament, and the five year constitutional deadline for the enactment of laws implementing the constitution, the Court advised that legislative measures giving effect to the two-third-gender principle in relation to the National Assembly and the Senate should be taken by 27 August 2015.

The mechanisms for the implementation of the two-third-gender principle for the National Assembly and the Senate are yet to be established after Parliament exercised its constitutional power to extend the timeline by one year. But this year National Assembly rejected a bill pushing for the implementation of the two third gender rule.

However, the president's inability to appoint a commensurate number of women, in particular now that cabinet secretaries don't have to be MPs, raises questions about his commitment to obeying the constitution's edicts. It is instructive to note that recently-fired female cabinet secretaries Charity Ngilu and Anne Waiguru were replaced by males.

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