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In re Article 27 (3) & (8) of the Constitution of Kenya 2010

Judgment

Question Presented: Whether failure to enact the two-third gender rule despite Court orders to do so calls for dissolvement of the Parliament.

Alleged Acts: The six consolidated petitions individually allege that Parliament has failed to enact legislation required to implement the two-third gender rule in accordance with Article 27(3), Article 81(b), and 100 of the Constitution, even though Parliament was compelled to do so by four Court orders. The Speakers of Parliament objected stating that the petitioners were “bad in law” because no court order was transmitted to the Chief Justice or the Parliament. Further, the Speakers argue that enacting the two-third gender rule will deprive citizens of their political rights under Article 38(3) because voters will not be able to vote for the candidate of their choice. Lastly, the Speakers argued that Chief Justice did not have jurisdiction over matters concerning matter governing Constitutional interpretation.

Procedural history: The Court determined that the Parliament had not only failed to enact legislation implementing the two-third gender rule, but again failed to enact the legislation during a one year period of extension. After that period, Parliament was given an additional sixty days to enact the rule and again failed to do so.

Summary: The Court determined that the Chief Justice did have the ability to hear the matter because Article 261, Clause (7) provides that if Parliament fails to enact legislation pursuant to an order complying with Clause 6(b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve it. Further, the Court determined that Article 261, Clause (7) does not require an investigation, but merely requires the Chief Justice determine whether the Parliament has adhere to the order to enact legislation. The Court determined that for a period of nine years, Parliament failed to enact legislation implementing the two-thirds gender rule. Despite, the Speakers concerns regard the economic hardships, especially during the COVID-19 pandemic, the Court determined that outcome of Parliament’s noncompliance was clear.

Conclusion: The Chief Justice advised the President to dissolved Parliament pursuant to Article 261(7).

Legal Issue(s)

Language of Decision

Geolocation

Latitude: -1.299737311

Longitude: 36.80159856

In re Article 27 (3) & (8) of the Constitution of Kenya 2010.pdf
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