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Kenyan Law on Gender Equality: Fighting Inequality, Resolving the Constitution Women's Rights

On February 27, the People's Assembly in Kenya again refused to pass the Kenya Constitution (Amendment) to the 2018 Draft Law, also known as the Gender Law, which seeks to legally regulate the constitutional requirement that no gender should have more than two thirds election functions.

The National Assembly did so by rejecting the legal quorum for a constitutional amendment requiring two thirds of members of the house to be present. Therefore, the MPs did not simply fail to pass the law, but they refused to appear in order to even allow the possibility of his adoption.

The National Assembly's refusal to adopt the law reflects the escalation in the constitutional conflict and has implications for the stability of the constitutional and democratic framework in Kenya.

The Kenyan Constitution of 2010 provides in Article 27 (8) of the Law on Rights: "The State shall take legislative and other measures to implement the principle that more than two thirds of the members of the electoral or nominated bodies shall not be of the same sex." This provision is also repeated in Article 81 (b) on the principles of the electoral system and is commonly referred to as the "gender principle".

Since the Announcing the current constitution in 2010, Kenya is struggling to implement the above provisions. This issue has been the subject of judicial proceedings for almost a decade, with courts that have consistently argued that the parliament has an obligation to pass laws that will ensure that its gender composition in electoral and appointed bodies is in line with the requirements set forth in the constitution. .

In 2012, the Supreme Court of Kenya gave the Parliament until 27 August 2015 to enact laws to implement the provisions of Articles 27 (8) and 81 (b). In spite of this, Parliament failed and / or refused to pass laws. In March 2017, the High Court once again found that the Parliament failed to fulfill its constitutional obligation to pass laws on the gender principle, and gave them 60 days for it. The Court further ordered that, in the event that the Parliament fails to pass a law during that period, the provision of Article 261 of the Constitution applies, and any person may file a request to the main justice to advise the President to dissolve the parliament. In spite of all this, the parliament did not pass the law within 60 days.

Article 261 (7) stipulates that if the parliament does not pass any judicial legislation for the implementation of the constitution, "the supreme judge will advise the president to dissolve the parliament, and the president dissolves the parliament." This is the only constitutional remedy foreseen for the failure and / or refusal of the parliament to pass the constitutionally prescribed regulations. Perhaps because it is the ultimate asset, the language in Article 261 (7) is obligatory for both parties. No discretion was given to the Supreme Court or the President; It is not by chance whether it is necessary to file a petition with the Chief Judge.

By refusing the National Assembly to pass a law on the sexes, the constitutional obligations of the Chief Judge and the President are unambiguous. Supreme Judge David Maraga is obliged to advise President Uhuru Kenyatta to dissolve parliament, and the president is obliged to do so.

At the end of 2017, Marga received two petitions calling him to act in accordance with her constitutional obligations in Article 261 (7) and advised the president to dissolve the parliament. Despite these applications and the explicit constitutional language that obliges him to act, he is yet to advise President Kenyatta to dissolve the parliament.

So, last month, when the National Assembly, a body that is inherently unconstitutional by gender principle (since 78% of MPs are men who exceed the constitutional maximum of two thirds or 67%), the Gender Law was rejected. A quorum needed, he did it with full knowledge of the consequences. This deliberate challenge to launch a constitutional provision on the dissolution of parliament is a decisive test not only for the holders of constitutional functions (chief judge and president), but also for the supremacy of the constitution itself.

From the decision, there was no statement by the Chief Legal Adviser to the Government – State Attorney Paul Kinhare. This is not surprising given that the state prosecutor is part of an unconstitutional and illegal cabinet, which in itself violates the gender principle as well as parliament (men make up 75 percent of the cabinet).

Prior to the appointment and appointment of the current State Prosecutor in 2018, the High Court has already ruled that the President and Parliament violated the constitution in proposing and approving the cabinet, where men exceeded two-thirds of their total membership. The chief legal adviser to the government, therefore, has a duty to violate the constitution and the court order. On March 1, 2019, the president signaled his continuing rejection of the borders of the constitutional and judicial authorities in his office by appointing Professor George Magoh, a man, as the Minister of Education.

A systematic violation of constitutional provisions on the inclusion of women stretches far beyond parliament. The Gender Equality Act can only be a means for elements in the government to improve the constitutional order in Kenya.

Whatever happens, Kenya appears to be at the stage of the constitutional crisis. Will the Chief Judge act in defending the constitution of Kenya? Or, as a member of the unconstitutional Supreme Court (which also violates the gender principle with men who hold 71% of membership), will he still be an accomplice in constitutional violations and with his inaction solved a fatal blow to the constitution? If Superior Judge Marga plays his constitutional role, will President Keniatta, who has repeatedly violated the constitution and defied the judiciary, finally adhere to the law or will we testify to the decisive termination of this administration with a legal framework? What happens if the parliament dissolves? Will the already discredited Commission for Independent and Electoral Boundaries (IEBC) with four members be able to conduct elections?

Women are not the only victims of the National Assembly's refusal to pass a law on gender. The Law on Gender Equality has simply provided the battlefield, it is a convenient means, but not an end. The aim is to deprive the democratically elected leader from the legal framework that facilitated their takeover of power. The consequences of the parliament's refusal to adopt a law extend further from the struggle for gender equality. They are rejecting the constitution and the principles of democracy. The actions of constitutional actors in the coming weeks will provide the clearest indication of 2010's Kenyan commitment to democracy, its constitution and the rule of law.

The views expressed in this article are authors and do not necessarily reflect the Al Jazeera editorial position.

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