Written by Lisa Murimi
A new petition calling for the dissolution of both the National Assembly and Senate over failure to implement the two-thirds gender rule has been referred to Chief Justice Martha Koome for possible empanelment of a constitutional bench.
Justice Lawrence Mugambi, in a ruling dated July 10, found the matter raises significant constitutional issues that warrant determination by more than one judge.
He cited the enduring failure of successive parliaments to comply with Article 27(8) and 81(b) of the Constitution, which require that no more than two-thirds of members in elective public bodies be of the same gender.
“In my view, there is an enduring legal question that characterises all these petitions, and this is the failure by Parliament to comply with the two-thirds gender rule. This question, unless resolved, will keep on recurring with every Parliament that comes up after every general election, hence it cannot plausibly be argued that it is a matter limited to the present Parliament,” he said.
The petition was filed by Margaret Toili, Eddah Marete, and Agnes Ndonji, who are also seeking an order compelling political parties to adhere to the gender principle during nominations.
They argue the 13th Parliament, like its predecessors, remains in breach of constitutional requirements.
While Justice Mugambi did not rule on the core issues, he referred the case to the Chief Justice under Article 165(4) of the Constitution.
Speakers of both Houses, listed as respondents, had requested the case be consolidated with earlier petitions filed between 2017 and 2020.
The petitioners opposed the move, arguing that past cases involved the now-defunct 12th Parliament and had already been concluded.
Justice Mugambi acknowledged that only a multi-judge bench could decide on consolidation. He recommended that the matter be placed before the same bench handling related petitions to ensure consistency.
“Nothing prevents this Court from forwarding this matter to the Chief Justice for empanelment of a bench to hear and determine it pursuant to Article 165 (4) but with a very humble recommendation to the Honorable CJ to consider placing the instant Petition before the same Bench that is handling the other related consolidated Petitions to consider this matter as well,” he ruled.
The petitioners are also seeking compensation for the alleged violation of their constitutional rights and want the Registrar of Political Parties ordered to enforce gender compliance in all future nominations.
