The 'Duale Bill' is not just about gender

In a case of classic misdirection, the media who choose to report and fail to analyze, and the Government have the nation believing that it is a minor matter of gender that the 11th Parliament was struggling with when they failed to enact the Duale Bill on April 27, 2016.

The truth is that the Gender Bill or as I will refer to it, the Duale Bill, is more about the Rule of Law and the validity of our upcoming elections than about gender.

It is about manipulating elections contrary to the provisions of the Constitution of Kenya 2010. Article 81 provides that the electoral system must comply with the principles provided therein, meaning that for the election to be legal, constitutionally they must provide for: (a) freedom of citizens to exercise their political rights; (b) not more than two thirds of members of elective bodies shall be of the same gender; (c) fair representation of persons with disabilities; (d) universal suffrage; and finally (e) free and fair elections.

This is the Article in the Constitution that is the basis for the Duale Bill. Gender is a very small part of it.

In 2012, the then Attorney General Githu Muigai sought an Advisory Opinion from the Supreme Court regarding the applicability of Article 81(b) to the 2013 election.

The Supreme Court in a majority opinion, with a prescient dissent by Chief Justice Willy Mutunga, held that the provision was inapplicable to the 2013 elections but that legislation must be in place to provide a mechanism for the realization of Article 81(b) by August 27, 2015 (which was also the deadline for all consequential legislation required by the Firth Schedule of the Constitution).

In addition to the Constitutional provision requiring legislation for Article 81(b), the Government of Kenya is bound by an order from the Supreme Court of Kenya to enact legislation to realize Article 81(b) before the next elections.

The Duale Bill is therefore a big deal. It is constitutionally mandated and has a further two court orders that require its enactment.

The Government has also been aware of the necessity of legislation on Article 81(b) since it assumed office in 2013. It is interesting that all we hear is, it is “just a woman’s issue”. Why? Because this is the easiest way to kill it.

To make something fail in Kenya, politicians have learned that all that is required it to ascribe it to the “wrong” tribe or to women. So, the “Gender Bill” is designed to elicit the latent prejudice and misogyny that politicians can count on to control us. But make no mistake, the failure of the Duale Bill is primarily an attempt to unconstitutionally influence the 2017 election process and only secondarily to exclude women.

If the National Assembly can get away with not complying with a constitutional provision on the elections, we can expect more, not less interference with the election process.

Today, we will have the clearest indication of our government’s commitment to the Constitution and the development and strengthening of our institutions.

The Constitution we have is only six years old. It isn’t perfect, no nation’s Constitution is, but it is the best chance we have to avoid the national crisis and post-election violence we experienced in 2007-8.

Our salvation as a nation does not lie with Uhuru Kenyatta, Raila Odinga or William Ruto or a tribal equation in the Office of the President. Our saviour is us; and our expression of our national aspirations in the Constitution of Kenya 2010.

As difficult as it is for a nation that has cultivated a habit, and now has an ingrained culture of not following the rules, we need to discipline ourselves to start to colour within the lines.

On Thursday we should all hope the National Assembly passes the Duale Bill because it will be an important step in instilling a culture of compliance with the law.