Speaker of the National Assembly v Centre for Rights Education & Awareness & 7 others (Civil Appeal 148 of 2017) [2019] KECA 655 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that Parliament broke the Constitution by failing to pass laws guaranteeing women at least a third of seats, and dismissed Parliament's challenge outright.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court may entertain the 3rd respondent's invitation to strike out or dismiss the appeal for an incomplete record of appeal
- 2.Whether the High Court erred in declining to refer the petition to the Chief Justice for empanelment of an uneven bench under Article 165(4)
- 3.Whether the Speakers of the National Assembly and the Senate were improperly joined as respondents
- 4.Whether Article 81 of the Constitution obliges Parliament to enact legislation to implement the gender principle
- 5.Whether Parliament failed to take the requisite legislative and other measures to implement the gender principle
- 6.Whether implementation of Article 261 and possible dissolution of Parliament would occasion a constitutional crisis
Key legal issues
#Defective record of appeal raised by the 3rd respondent
The objection failed: rule 84 required a strike-out application within 30 days, and a respondent may lodge a supplementary record under rule 92; the omitted affidavit was in any event filed.
The Court held the 3rd respondent was time-barred from seeking striking out more than a year after service, since rule 84's proviso bars late applications. Rule 92 provided an alternative remedy by supplementary record. The alleged omitted affidavit had in fact been brought on record via the Speakers' supplementary record of appeal filed on 21st July 2017, so the objection lacked foundation in law.
Empanelment of an uneven bench (Article 165(4))
The ground was incompetent because no notice of appeal was filed against the 25th January 2017 ruling dismissing the empanelment application.
The notice of appeal on record was against the judgment of 29th March 2017 only. The empanelment issue was determined in the separate ruling, not in the judgment, and without a notice of appeal against that ruling the Court had no jurisdiction to revisit it. Authority: IEBC v. Jane Cheperenger and Safaricom Ltd v. Ocean View Beach Hotel Ltd.
Joinder of the Speakers
The Speakers were properly joined as respondents where a House's constitutional compliance is challenged; suing all MPs individually is untenable and offends Article 22.
Parliament, not individual members, bears the collective obligation to legislate. The Speaker represents the House, chairs the Parliamentary Service Commission, and the 2010 Constitution removed the AG's automatic representation of Parliament. Mutunda joinder rules under the Mutunga Rules forbid defeating a petition on joinder grounds; MPs' fair-hearing complaint was a red herring since Parliament was represented throughout.
Whether Article 81 requires legislation to implement the gender principle
Yes. Articles 27(6) and (8) and 81(b), read holistically with the Fifth Schedule's residuary five-year period, require legislative and other measures.
The Constitution must be read as an integrated whole (Olum v. Attorney General) and interpreted under Articles 20 and 259 to promote its purposes. The residuary limb of the Fifth Schedule covers legislation not expressly listed. Accepting the appellant's argument would contradict the Supreme Court's advisory opinion setting 27th August 2015, offending Article 163(7).
Whether Parliament implemented the gender principle
No. The Election Laws (Amendment) Act, 2016 amendment of the Political Parties Act did not implement the gender principle.
The 15% Political Parties Fund incentive attaches to 'special interest groups', a category wider than women, so a party could qualify without any woman. The incentive attaches merely to nominating a candidate, not to electing one. Constitutional Amendment Bills were never debated and died for lack of quorum, evidencing no good-faith effort.
Constitutional crisis and dissolution of Parliament
Implementing Article 261 cannot cause a constitutional crisis; the mechanism exists precisely to prevent legislative inertia.
The Committee of Experts' Final Report confirms Article 261 was designed to guard against failure to pass scheduled legislation. A Constitution does not subvert itself; apparent internal tensions embody compromises. The real crisis would be deliberate defiance of the Constitution. The High Court's declaration was already made and the extension power under Article 261(2) had been exhausted.
Legal principles established
#- Where it is alleged that Parliament (National Assembly or Senate) has violated the Constitution, the Speaker of the relevant House is a proper respondent; individual Members of Parliament need not be sued.
- A petition for enforcement of fundamental rights cannot be defeated by misjoinder or non-joinder of parties.
- Article 81(b), read with Articles 27(6) and (8), obliges the State, including Parliament, to take legislative and other measures to implement the gender principle, and legislation is required notwithstanding that the Fifth Schedule does not name Article 81.
- The amendment of the Political Parties Act by the Election Laws (Amendment) Act, 2016 (15% Political Parties Fund for special interest groups) does not amount to implementation of the gender principle.
- Article 261's default mechanism exists to guard against legislative inertia, and complying with it cannot itself cause a constitutional crisis.
- Without a notice of appeal against a ruling, the Court of Appeal has no jurisdiction to entertain a purported appeal against issues determined in that ruling.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Petition No. 371 of 2016 (judgment of 29th March 2017; number not expressly printed in the judgment)
- Jurisdiction invoked
- First appeal to the Court of Appeal against the High Court's judgment enforcing Article 261 of the Constitution (specific appellate provision not stated in the judgment)
Relief refused
#Setting aside the High Court's declarations, mandamus and consequential dissolution mechanism
None of the five grounds of appeal had merit; the High Court acted within the express authority of Article 261(6)
Appellant's costs of the appeal
The issues are of great public interest, justifying no order as to costs
Costs
Each party should bear its own costs - "It justifies an order that each party should bear its own costs. It is so ordered."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We have come to the conclusion that none of the grounds of appeal put forth by the appellant has any merit. For that reason, the appeal is dismissed in its entirety.
The issues litigated in this matter are of such great public interest that it justifies an order that each party should bear its own costs. It is so ordered.
In our view, where it is alleged that the National Assembly or the Senate has violated the Constitution, the Speaker is a proper respondent
We cannot but agree with the learned judge that the mere amendment of the Political Parties Act in the manner set out above does NOT amount to implementation of the gender principle.
To accede to the argument is to make nonsense of the decision of the Supreme Court and to blatantly ignore the provisions of Article 163(7) of the Constitution on the binding nature of the decisions of the Supreme Court on other courts.
it was simply to guard against legislative inertia or inaction which would thwart or frustrate the fully implementation of the Constitution.
Issues in the judgment
#Paragraph numbering in the judgment skips from paragraph 77 to paragraph 79; no paragraph 78 appears.
The judgment does not print a case number or formal heading for this appeal; the appeal from the High Court petition number is also not stated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Speaker of the National Assembly v Centre for Rights Education & Awareness & 7 others (Civil Appeal 148 of 2017) [2019] KECA 655 (KLR)", Case Analysis (2019). Civil Appeal No. 74 of 2017 (as drawn from the record; the judgment does not print a heading number). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/655/eng@2019-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.