Kenya: Maraga - Chief Justice Who Supported Gender Equality

18 January 2021

David Kenani Maraga, the Chief Justice who just retired from the Judiciary last week has been described by women rights organisations as a friend to the women's movement and empowerment cause in Kenya.

Mr Maraga will be remembered for his firm stand on the need to uphold the rule of law and the independence of the Judiciary.

The retired Chief Justice in September last year caused a storm when he advised President Uhuru Kenyatta to dissolve the 12th Parliament over failure to implement the two-thirds gender rule.

In an advisory to the President, Mr Maraga called for the dissolution of Parliament in accordance with Article 261(7) for failing to enact the gender rule, a move that divided the country right in the middle.

Choices have consequences

He noted that the carefully designed enforcement mechanism of dissolution of Parliament under Article 261(7) irrespective of its consequences, is clearly the radical remedy Kenya desired to make the political elite adhere to and fully operationalise the transformation agenda of the Constitution they gave to themselves in 2010.

"In the circumstances, let us endure pain, if we must, if only to remind ourselves, as a country, that choices, and particularly choices on constitutional obligations, have consequences. Let us endure pain if only to remind the electorate to hold their parliamentary representative accountable. Let us endure pain if only to remind ourselves that, as a country, being a democracy that has chosen to be governed by the rule of law, we must say no to impunity and hold everyone accountable for their actions and omissions," Mr Maraga's advisory read in part.

He noted that besides the Supreme Court Advisory Opinion issued on December 11, 2012 and the High Court order issued on June 26, 2016 in Constitutional Petition No. 182 of 2015 on March 29, 2017, Justice John Mativo directed Parliament and the Attorney General to take steps to ensure the required legislation is enacted with 60 days from that date and a report made to the Chief Justice.

"As such, for over nine years now, Parliament has not enacted the legislation required to implement the two-thirds gender rule which the Court of Appeal observed in its said judgment, is clear testimony of Parliament's lackadaisical attitude and conduct in this matter. Consequently, it is my constitutional duty to advise you to dissolve Parliament under Article 261(7) of the Constitution," Mr Maraga said in the advisory.

Violation of the law

The move by the retired CJ came after the Law Society of Kenya (LSK) in July last year kicked-off a fresh process that sought to compel the President to dissolve Parliament for failing to initiate implementation of constitutional provisions that would ensure gender balance in both levels of government.

This was the third time a petition has been submitted to the CJ over the same issue. On April 10, 2019, Margaret Toili petitioned Justice Maraga, requesting for dissolution of Parliament, but he dismissed it citing a Bill, which was in the House.

Ms Toili's case was followed by a similar petition by Stephen Owoko and John Wangai, whose bid also failed to succeed.

In December 2012 the Supreme Court directed the Government to implement a progressive approach in filling the gender gap by August 27, 2015. However, despite the court directive, nothing happened.

After the expiry of the 2015 deadline, the Centre for Rights Education and Awareness (CREAW) and CRAWN Trust sued Parliament and the Senate at the High Court for violating the law.

The lobbies said the leaders failed to enact necessary regulations that would see the two-third gender rule implemented. In March 2017, Justice John Mativo ruled the bicameral House violated women's rights to equality and freedom from discrimination. He directed both Houses to enforce the gender rule within 60 days. The order was not implemented.

In solidarity

Community Advocacy and Awareness (CRAWN-Trust) a rights organisation which has been in the fore-front in fighting for the implementation of the two-thirds gender rule praised Mr Maraga for his service to the nation and for the impeccable manner in which he guided the Judiciary in raising the bar of the rule of law in the county.

"On two-thirds gender principle, Mr Maraga has been a friend to the women's movement in Kenya. He will be remembered for his stand on the independence of the Judiciary and the fight to uphold the rule of law," CRAWN-Trust tweeted.

The organisation added that it hopes his legacy will live on in the Judiciary as his colleagues emulate his boldness, passion and desire for the respect for the rule of law and for justice to be the nation's shield and defender.

After the advisory by Mr Maraga, tens of women associations, women rights organisations and gender equality advocates in the country welcomed the move terming it long overdue.

In a statement, the rights organisations said they stood in solidarity with the action taken by the Chief Justice on dissolution of Parliament.

"The action by the Chief Justice is timely and takes cognizance of the challenges that women have faced and continue to face in our quest for inclusivity and equality," their statement read in part.

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