Lawyers Stephen Mwenesi and Judy Thongori (left) accompanied by activist Ann Njogu (centre),together with 2 thirds gender rule activist talk to the media outside Milimani law courts on Friday 26 June,2015.
BY SAM ALFAN.
Attorney General and the Commission for Implementation of Constitution were on Friday given 40 days to enact laws on the gender rule.
Justice Mumbi Ngugi said the actions of the two office holders of not meeting the August 17 deadline is a threat to the constitution.
The new constitution promulgated on August 27, 2010, espouses the rights of women as being equal in law to men.
Women are entitled to enjoy equal opportunities in the political, social and economic spheres.
The law obligates the government to develop and pass policies and laws, including affirmative action programmes and policies to address the past discrimination that women have faced within five years.
Ngugi said AG Githu Muigai and CIC chairman Charles Nyachae have failed to prepare the necessary laws for the two-third rule as ordered by the Supreme Court on December 12, 2012.
“The AG has a constitutional duty to prepare relevant bills on the issue and forward it to CIC,” she said.
Kenya Women Parliamentary Association (Kewopa), the legislators has been enjoined on a suit filed by a women’s lobby group.
This is after Kandara Member of Parliament Alice Wahome made an oral application before Justice Mumbi Ngugi seeking the women parliamentary organization to be enjoined on the matter.
Attorney General and the Commission for the Implementation of the Constitution (CIC) were directed to respond to the allegations that they have failed to provide legal framework in implementation of two-thirds gender rule.
Justice Mumbi Ngugi sitting in Milimani, Nairobi,directed them to file the response within five days of which the petitioners Centre for Rights Education and Awareness (CREAW) to respond to that reply in two days.
The non-governmental organization had accused Attorney General Githu Muigai of failing to provide relevant legal framework for the implementation of the two-thirds gender rule as stipulated in the constitution.
The Lobby group is seeking orders directing the AG and the Commission for the Implementation of the Constitution (CIC) to prepare the relevant Bill for tabling in Parliament as provided for in articles 27(8) and 81(8) of the Constitution.
Female MPs have vowed to fight a Constitutional Amendment Bill that seeks to postpone the implementation of one-third gender rule in the House as provided in the Constitution.
Under the auspices of Kenya Women Parliamentary Association (Kewopa), the legislators want the National Assembly’s Justice and Legal Affairs committee chairman Samuel Chepkonga to withdraw the Bill that seeks to push back the implementation of the deadline for realizing the gender rule, which falls due on August 27.
The lobby group moved to the High Court Constitutional Division challenging Parliament’s
failure to enact the two thirds gender rule as per a Supreme Court’s directive issued three years ago.
Centre for Rights of Education and Awareness (CREAW) through lawyers Judy Thongori and Wangeci Wahome, claimed that on December 11, 2012, the Supreme Court directed Parliament to make requisite legislative interventions by August 27 to realize this principle.
The lobby sued the Attorney General and the Commission on the Implementation of the Constitution.
The lobby argued that the law requires that before Parliament discharges this obligation, the sued parties ought to prepare the relevant bills for tabling before the house as to enable the enactment of the legislation within the specified period.
But the lobby claimed that the AG and CIC have declined to prepare the relevant bills for tabling before Parliament hence they are threatening to violate the said constitutional provisions.
“It is just, equitable and necessary that this court intervenes and in a timely manner make appropriate orders to compel the AG and CIC to perform their functions so as to avoid imminent violation of the Constitution,” Ms Thongori said.
According to CREAW’s CEO Anne Njogu, the lobby has a right to sue over the matter since it is a fundamental freedom in the Bill of Right which has been denied.
“A demand letter and a notice of intention to sue has been issued to the AG and CIC to do so but they have either been sluggish or have out rightly refused to honor the terms of the requests made, I verily believe that
considering the processes of enactment of laws from Bills where there are necessary constitutional amendments, there is a threat of violation,” Ms Njogu said.
CREAW alleged that the state is required to take legislative as well as other measures in ensuring that affirmative action programmer and policies are designed to compensate any individual or groups for past discrimination.
CREAW also alleged that the Constitution demands that the state should implement the rule that prohibits more than two thirds of the members of elective or appointed public bodies to be of the same gender.
The top Court had directed that the gender rule representation taking effect in the Senate and the National Assembly whilst the matter was allegedly referred to them as ‘hard gender quota’.
Following the directive, Parliament was required to legislate measures to ensure compliance with the gender equity rule in both Houses.
The lobby is therefore seeking a declaration that the sued parties have neglected to act in accordance with the Supreme Court directive hence they have violated their obligations.
They further seek a declaration that the refusal is a threat to a violation and want the AG and CIC to be compelled to prepare the relevant Bills for tabling before Parliament in order to implement the two third gender rules as per the ruling.
High Court judge Mumbi Ngugi certified the matter as urgent, set it for inter party hearing on Friday May 8 and directed the sued parties to respond.
“The Constitution requires that as a precursor to Parliament discharging the obligation, the first (AG) and the second ( CIC) respondents ought to prepare the relevant bills for tabling before Parliament as soon as reasonably practicable to enable Parliament to enact the legislation within the period specified,” said lawyer Judy Thongori who represented the lobby group.
Through its Executive Director Ann Njogu, (CREAW) further wants the court to declare that the AG and CIC have failed to prepare the bills and a further declaration that their actions are a violation of the Constitution.
Njogu maintained that the two institutions have gone against a decision by the Supreme Court, which had given an advisory opinion on December 11, 2012 calling for the introduction of legislation to ensure compliance with the gender equity rule.
The two-thirds gender rule states that not more than two-thirds of members of elective or appointive organizations should be of the same.
In the suit, Centre for Rights of Education and Awareness had sued the AG and CIC for not implementing the 30 per cent gender rule as directed by the Supreme Court three years ago.
Muigai in the petition argued that there is no guarantee that the number of nominated persons from the lists provided by political parties will ensure that the gender quota is realized