The ongoing push to impeach Deputy President Rigathi Gachagua has hit a legal roadblock, with Cleophas Malalah seeking constitutional guidance on whether Parliament, in its current form, can legally initiate such a motion.
The petition raises concerns about Parliament’s compliance with the two-thirds gender rule, a requirement outlined in the Kenyan Constitution under Article 27(8) and Article 81(b).
According to Article 27(8), the State must take legislative and other measures to ensure that no more than two-thirds of members in any elective or appointive body are of the same gender.
Article 81(b) further emphasizes that the electoral system must ensure compliance with this rule. However, Kenya’s Parliament has repeatedly failed to meet this constitutional mandate.
In 2020, then-Chief Justice David Maraga issued a historic call for the dissolution of Parliament, citing its failure to enact legislation ensuring adherence to the two-thirds gender rule. Maraga, invoking Article 261(7) of the Constitution, argued that Parliament had failed in its duty to pass the necessary laws and, therefore, was improperly constituted.
Malalah’s case echoes these concerns, questioning how a Parliament that has consistently failed to comply with its constitutional obligations can lead a valid impeachment process. The National Assembly, which currently has 349 members, includes only 76 women.
This falls significantly short of the required 116 women for compliance with the two-thirds rule. Similarly, the Senate has 68 members, with only 21 women, mostly nominated, while the constitutional requirement would be 23 women.
One of the critical questions the courts will have to address is how Parliament can gather enough numbers for an impeachment motion but has consistently failed to meet the threshold needed to fulfill the two-thirds gender rule.
This constitutional inconsistency is at the heart of Malalah’s petition, which seeks clarity on whether Parliament, as it stands, has the legitimacy to undertake such a significant process as impeaching a sitting Deputy President.
The courts are expected to hear the case in October, setting the stage for a landmark ruling that could impact both the impeachment motion and the broader constitutional landscape regarding gender representation in Parliament.