For the feminist archive 

Let the record reflect. Reflections on the Chief Justice of Kenya’s Advisory on the Dissolution of Parliament

You would have us forget, you would have us make it easier

Power, Muthoni the Drummer Queen

Memory is what we choose not to forget. It is what members us to ourselves, our communities and our society. We are connected when we remember. Remembering re-members us, it joins us.  So when the Chief Justice issued his Advisory on the dissolution of Parliament while omitting the first petitions submitted to him in 2017 by #WeAre52pc, he was making a decision about what he as the head of a branch of government, and Kenya as a nation should forget. About who and what should be forgotten.  About who is a member and is therefore worth remembering. About who does not belong. Who is not seen or heard and so we never even know if they are forgotten because we refuse to see or hear them in the first place.  Memory is an official record of belonging. 

In 2010 Kenya promulgated a new Constitution, a progressive and transformative social contract that for the first time in our history guaranteed “equal protection and equal benefit of the law”. It also provided a constitutional gender quota in elective and appointive public positions: Article 27(8) provides that “not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.” As such, the Constitution does more than require women’s representation, it effectively limits the dominance of the gender in the majority. Despite this transformative social contract and explicit limitation on public bodies with a super majority of one gender, in 2012 the Supreme Court of Kenya, in what has proved to be an ill-advised majority decision, held that the constitutional gender quota was not applicable to the first general election in 2013.

In effect, the Supreme Court Advisory Opinion 2 of 2012 delivered in December 2012 provided legal cover for an unconstitutional first parliament, one which did not comply with the provisions of Articles 27(8) and 81(b) which require that not more than two-thirds of the members of an elective body shall be of the same gender. However, the Supreme Court ordered parliament to enact legislation by August 27, 2015 to ensure a mechanism to realize the not more than two-thirds gender principle in parliament. The Supreme Court decision therefore contemplated only one parliament that was constituted in violation of the constitutional gender quota. It is notable that in making this decision the Supreme Court was temporarily, at least so it thought, exempting parliament from a constitutional gender quota that is applicable to all public elective and appointive bodies. Despite the Supreme Court judgment and subsequent orders from the High Court in 2015 and 2017 parliament refused to enact legislation as required to implement the constitutional gender quota and to comply with the court decisions.  

 On March 29, 2017, Justice John Mativo in High Court Petition 371 of 2016 gave parliament 60 days to pass legislation to realize the Gender Rule. Failure to which he indicated that pursuant to the provisions of Article 261(7) “…the Petitioners or any other person shall be at liberty to petition the Honourable the Chief Justice to advise the President to dissolve Parliament.”  The sixty days lapsed and parliament did not pass the law. As such, the constitutional conditions for an advisory opinion for the dissolution of parliament have existed since May 29, 2017, when the sixty days lapsed.  

On September 27 2017 I delivered the first petition on the dissolution of the Kenyan Parliament to Chief Justice David Maraga’s office.  A few weeks later we submitted an online petition signed by 629 people. Both of these petitions were conceived of, drafted and delivered by the feminist collective #WeAre52pc. The petitions relied on Justice John Mativo’s High Court judgment as well as the provisions of the Constitution including Article 3 which provides that …In addition to these petitions, we conducted widespread social media campaigns on the provisions of the Constitution around gender equality, inclusion and representation and Article 261. 

On September 21, 2020, almost 3 years to the day the Chief Justice finally advised the President to dissolve Parliament. However, the Chief Justice in his advisory opinion to the President deliberately omitted these #WeAre52pc petitions delivered in 2017. The Advisory Opinion makes specific reference to six other petitions, all of which were submitted after the #WeAre52pc petitions. In effect, the Chief Justice chose who should be remembered, who would be credited, who he deemed qualified to assert constitutional rights. Chief Justice David Maraga in choosing to deliberately distort the record, to write out the work of women who had sought this decision almost 3 years earlier, is engaging in erasure as a patriarchal project, as well as covering up his own failure to act.   

It is important to understand the provisions of Article 261 in the context of constitutional architecture.  Article 261 is in the last chapter of the Constitution on Transitional and Consequential Provisions. When the Constitution was promulgated in 2010 it provided a schedule of legislation which parliament was required to enact to fully implement the Constitution.  The time frame for the various legislation ranges from one year to five years with a provision that parliament may extend the period by one year.  As such the provisions of Article 261 were intended to apply during the first five to six years of the life of the Constitution. Which makes sense because as a transitional period, this is the time during which all legislation to fully implement the Constitution should be enacted.  

Finally, although the High Court judgement in petition 371 of 2016 makes reference to citizen petitions to trigger the Chief Justice’s action, under the provisions of Article 261(7) the Chief Justice requires no such petition; instead, the Chief Justice is under an obligation to issue an advisory to the President. As such, the Chief Justice was under a continuing independent obligation from at least May 29, 2017, to advise the President to dissolve parliament. A fact that it is clear he would like us to forget. 

On August 8, 2017, we had a general election. Had the Chief Justice issued an advisory to dissolve parliament in May, June or July, it would barely have affected the term of the 11th parliament. It would, however, have sent an important message about the consequences of parliamentary non-compliance.  Instead, the Chief Justice did nothing. And when #WeAre52pc petitioned for the dissolution of parliament in September 2017 the Chief Justice didn’t even bother to acknowledge the petition or respond to our follow up requests for feedback.

From March 2017 parliament’s intransigence grew, convinced that it could suffer no consequences for continued lawlessness. The effect of the Chief Justice’s failure over a three-year period has been to contribute to a national norm of illegality and impunity.  When illegality is tacitly tolerated by other arms of government, including those with an obligation to act, impunity begins to set in. Parliament had come to rely on the status quo which is one that tolerates its illegality.  It is therefore not surprising that parliament believes it is above the Constitution and the law. 

Indeed, the response by parliament to the Chief Justice Advisory is one of defiance. The Advisory Opinion deliberately presents an incomplete set of facts, which mask the Chief Justice’s failure to act. As such, the Chief Justice’s deliberate distortion of the record serves not merely to erase the work of women, but also to disguise his own inaction.  

It is important that we also maintain alternative archives, evidence of our heritage as knowers and of our knowledge systems.

Patricia McFadden a sociologist and feminist writer in Writing as/for Resistance states that “Women generally and women who write in particular, are largely relegated to the margins of textuality and narration and knowledge creation and knowledge retrieval.”  Women aren’t heard or read as knowers; knowing and systems of knowledge are deemed the preserve of men. 

And even while women continue to challenge this with our various contributions, it is important that we also maintain alternative archives, evidence of our heritage as knowers and of our knowledge systems. Repositories of our stories, art, details of our labour, records of our successes and losses and a place to host our pain. Spaces and places where we remember and re-member ourselves and each other. 

A feminist archive will not address the issue of the harm that is inflicted by and through erasure, nor will it necessarily correct the distorted image society has of itself, but it can record our aspirations and our stories. A feminist archive exists for us to see and hear each other, to provide a place of belonging. Alternative feminist archives are necessary to sustain the feminist project. We cannot rely on the official archive.

Let the record reflect that feminists spoke, we wrote, we acted. That our words and deeds were met with silence and contempt.  

Let the record reflect that the feminist collective #WeAre52pc were the first to petition the Chief Justice to dissolve parliament on September 27, 2017. 

Let the record reflect the Chief Justice refused over a period of three years to issue an advisory opinion on the dissolution of parliament.

Let the record reflect that the official record created by the Chief Justice on the dissolution petitions is a deliberate distortion of the facts. 

Let the record reflect that all three arms of the national government are unconstitutional: Cabinet, Parliament and the Supreme Court of Kenya all illegally exclude women and, according to the provisions of Article 3(2), are therefore unlawful.   

Let the record reflect that an unconstitutional parliament cannot legally amend the Constitution. 

Let the record reflect that this moment where the Chief Justice has advised the president to dissolve parliament is the result of the imagination, labour and perseverance of women and our allies. 

Let the record reflect that our government stole women’s rights despite the constitution and court orders.

Let the record reflect that we will keep our own record. We will hold the truth in trust for ourselves and those who come after us. 

Let the record reflect you have tried to erase us. 

You will not erase us. We choose not to forget. 

Let the record reflect, we remember. We will re-member.

Featured photo: C.Schubert

Marilyn Kamuru is a Kenyan lawyer and member of the WeAre52pc which is a feminist collective that was the first to petition for the dissolution of parliament in 2017. She is currently working on a book on the two-thirds gender rule and state-sponsored backlash against women’s rights in Kenya.

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