By Benson Otieno Sewe
While the two thirds gender principle is a constitutional requirement that must be met, in fact it is a requirement under the Bill of Rights in Chapter 4 of the Constitution of Kenya, 2010.
The 5th schedule that guides all the consequential legislation in Article 261 doesn’t include Articles 27 & 81 as part of the specified legislations to be enacted by Parliament within a specified period, therefore in my view, the constitutional principle of 2/3 gender remains a state affair as contemplated in Article 27(6) and NOT just parliament alone.
It will be inconsequential to dissolve parliament on the account of its failure to enact the 2/3 gender legislation while its a mix of legislation and other programmes including affirmative actions.
CJ Maraga’s advisory to dissolve parliament seems to be a reaction from the faliure by President to appoint the 41 judges on the basis of their alleged unsuitability or competency to serve. The timing of this advisory is suspect. It is coming a time when parliament is expected to legislate on measures that will cushion Kenyans from the negative effects of Covid-19 pandemic. Something that CJ Maraga acknowledges in his advisory opinion to the president.
In my estimation and knowledge, this will not happen and must not be allowed to happen. The word ‘SHALL’ means mandatory and therefore, the president is under obligation to dissolve parliament as advised but remember Constitutionof Kenya, 2010 does not give the president the constitutional timelines to dissolve parliament under such circumstances and therefore it can be done in eternity.
Tactfully the president may decide to comply by the advisory to dissolve parliament just 3 months before August 2022. That means he shall have evaded it all together since the provisions of Article 101(5) prohibits filling of such elective vacancies 3 months to the general elections.
The other challenge with president dissolving parliament from advisory is that it would mean that all the previous legislations and decisions passed by the same parliament prior to its dissolution shall be considered UNCONSTITUTIONAL ‘ab inito’. This is the very reason why I doubt if President Kenyatta will dissolve parliament. It will not happen it must not be allowed to happen.
The writer is a Community Development specialist and can be reached on email: email@example.com