Truth be told, one-third gender rule is a clear insult to women

Winston Churchill, the famed British imperialist, is known for many pithy witticisms. This one is memorable – “democracy is the worst form of government, except for all the others.”  Translation – majority rule can often produce bad, unintended consequences. This is the case with the infamous one-third gender rule in the Constitution.

Sections 27(8) and 81(b) of the Constitution provides, in unambiguous and unequivocal language, that no gender shall constitute more than two-thirds of elective and appointive public offices.

There isn’t a dimwit in the country who would contest the plain meaning of these two pivotal provisions. Yet the men in Parliament – led by Speaker Justin Muturi – want to cannibalise even this “minimal” requirement to lift women in the public square.

Mr Muturi, a lawyer, and his fellow male chauvinist traditionalists, are buoyed by one misbegotten advisory Supreme Court ruling. In Advisory Opinion No 2 of 2012, the Supreme Court ruled that the one-third gender rule should be implemented “progressively.”  The majority clearly misunderstood – or deliberately misinterpreted – a clear constitutional provision. It was a shocking – and ignorant – ruling.

That’s why in a stinging dissent, Chief Justice Willy Mutunga rebuked his colleagues. Parliament had failed to pass the enabling legislation to implement the one-third gender rule prior to the 2013 elections.

There’s no doubt the failure to comply with the one-third gender rule would have rendered both houses of Parliament unconstitutional. Even a first law student automatically gets this.

In his strongly worded dissent, CJ Mutunga argued that “Parliament by its silence cannot deprive the women of this country the right to equal representation. In the event that Parliament fails to implement that principle [one-third gender rule] any of the elected houses will be unconstitutional.”

But that’s water under the bridge because the highest court gave the legislature permission to act out its misogyny.

In my view, the Supreme Court illegally rewrote the Constitution with the stroke of a pen. Courts aren’t permitted to substitute their own political views where the plain meaning of the Constitution is unarguable. It’s not the job of the Supreme Court to redraft the Constitution. It was a tragic failure of judicial restraint.

I am not a fan of the one-third gender rule. Chauvinists think it’s way too much.

They fought tooth and nail to exclude it from the Constitution – in a bid to protect heteropatriarchy. Methinks the one-third rule is too little, and quite frankly, an insult to women. That’s because women constitute more than half of Kenya’s population.

A true reflection of their numerical strength would be a one-half rule in which at least one half of all elective and appointive offices are occupied by women. Imagine a country where blacks and whites have equal numeral strength but yet less than one third of all offices were occupied by blacks. We would call that Apartheid, and seek to overthrow it.

Mr Muturi and his ilk act as though they haven’t read a single book, or article, on how heteropatriarchy – and structural misogyny – work. They speak as though they’ve never heard of how subordination and multi-dimensionality oppress, discriminate, and exclude women from virtually all positions in the home, and outside it – in the public and private squares.

They think as though they don’t understand the hidden biases embedded in the law. They talk as though they don’t know the stubborn power of cultural and religious hatreds that disempower and disinherit women. They flippantly opine about entrenched norms, practices, and structures of discrimination against women. I wish they could be turned into women for just one day.

Kenya’s Constitution is one of the most progressive national charters in the world. But constitutions, no matter how great, don’t enforce themselves.

They need the three arms of government working in good faith to realise the values in them. But of the three arms, the Judiciary is the sole guardian of legality.

Here, the Supreme Court is tasked with keeping the barbarians from overrunning the state. That’s why it’s immoral and illegal when the Supreme Court becomes the watchman of hateful conservatism and a haven of backward traditionalism.

The Supreme Court mustn’t be a lackey of the Executive, or become the dog that wags the tail of Parliament. That’s what it did by denying the one-third rule. Shame – shame.

Finally, a word for our parliamentary sistren. Remember this – power concedes nothing. It never has, and never will. That’s why you must fight for every little scrap of freedom. I urge you to declare a public relations war against Parliament.

The one-third rule is in danger of disappearing, even though it’s already such a small concession itself. How so sad that those with little shall have even that little taken away? Teach the men in Parliament a lesson. Make their lives a living hell.