Gender rule case circus plays out in court

The controversy over implementing the two-thirds gender rule in Parliament has resurfaced in court following revelations that the Speakers of both Houses secured a stay order from the Court of Appeal, halting legal proceedings.

This revelation was presented Wednesday before a five-judge bench of the High Court, recently appointed by Chief Justice Martha Koome, to address 10 consolidated petitions seeking the dissolution of the National Assembly over its failure to enact laws supporting the two-thirds gender rule.

Judges Jairus Ngaah, Lawrence Mugambi, Patricia Nyaundi, Moses Otieno, and Tabitha Ouya Wanyama convened to give directions on the case but were unable to proceed after Asli Osman, counsel for the Speakers of the Senate and National Assembly, presented the court order.

The stay order suspended an earlier ruling which affirmed Deputy Chief Justice Philomena Mwilu’s authority to appoint judges to hear the consolidated petitions.

The Speakers had appealed the High Court’s decision, which upheld Mwilu’s appointment of an initial panel of judges who subsequently abandoned the case without rendering a judgment. This led to CJ Koome appointing a new bench to take over the matter.

Court of Appeal Judges Roselyn Nambuye, Wanjiru Karanja, and Ole Kantai issued the order, barring the previous judges from determining the appeal brought by the Senate and National Assembly speakers.

“On the nugatory aspect, it appears to us that if it were held on appeal that the Deputy Chief Justice had no powers to empanel the bench, the appeal would be a victory with no practical effect—a mere academic exercise,” ruled the appellate court judges.

Following this development, Nelson Havi, a lawyer for the petitioners, objected to the appellate court’s intervention, arguing that the newly appointed judges should retain the authority to hear the case.

He said that the push for gender representation could not be delayed indefinitely. Havi stated that he had filed a new application seeking permission for the current bench to hear and determine the consolidated petitions, following hearings conducted on May 3, 4, and 5, 2021, by the previous judges Lydia Achode, George Odunga, James Makau, Anthony Ndung’u, and Pauline Nyamweya—appointed by the Deputy Chief Justice.

The initial judges failed to conclude the matter following the stay order. Some have since been elevated to the Court of Appeal, and Justice Makau had retired.

Despite Havi’s insistence, the judges expressed unawareness of his new application, which sought to compel them to proceed with the petitions partially heard in May 2021.

Frustrated by the judges’ inability to address his concerns, Havi dramatically exited the courtroom, stating, “If you excuse me, I have other important issues to deal with.”

The judges ultimately postponed the proceedings to December 6, directing Havi to serve all relevant parties with his application.

These cases began following former Chief Justice David Maraga’s advisory to retired President Uhuru Kenyatta, urging the  dissolution of Parliament due to its failure to implement the two-thirds gender rule.

Maraga’s unprecedented advisory noted that Parliament had ignored a High Court order to enact legislation to implement the two-thirds gender rule for more  than nine years.

However, Maraga’s advisory was challenged in the High Court by ten petitioners seeking to block its implementation.

Among those who filed petitions are the National Assembly, Senate, Attorney General, Third Alliance party, lawyer Adrian Kamotho Njenga, and two citizens, Leinah Konchellah and Mohsen Munasar, among others.

The petitioners sought to halt any dissolution of Parliament until their petitions are resolved.

In a joint petition, the Senate and National Assembly have argued that the President should disregard the advisory opinion, dated September 21, 2020, to dissolve Parliament for contravening Article 131(2) alongside Article 261(7) of the Constitution.

The MPs and Senators are also requesting that the High Court declare that the orders issued by Justice John Mativo only apply to the 11th Parliament.