Focus on amending Constitution will not bring gender parity

Anyone who was expecting the National Assembly to pass the Constitutional Amendment Bill this week must exist in an alternative reality. The Bill was a cruel joke on women. I surmise its intention being merely to report to Court and Chief Justice, when need arose, that Parliament was working hard to achieve Justice Mativo's orders earlier this year for Parliament to enact the required legislation within 60 days or face dissolution. The clearest evidence of dis-ingenuity was the constitutionally defective approach that Parliament took. The Constitution required Parliament to pass legislation, under the existing Constitution, to ensure that no gender was unfairly under-represented. It would be a constitutional absurdity to say that the Constitution could only be complied with by amending it; this would no longer be compliance of the existing Constitution!

But even more critically, any proposals that sought to respond to the gender question by adding nominated MPs when there is already a feeling that Kenyans are over-represented would meet the wrath of a long-suffering public. Never mind that the increase to the exchequer would be relatively negligible; this is a matter on which the public is generally averse to. This is why in numerous meetings on the issue after the Supreme Court's decision, it was agreed that while it was a difficult issue to resolve, a constitutional amendment in the proposed terms was not the prudent way to go.

Fraught with litigation

It was however agreed that there were changes that could be made to the Elections Act and the Political Parties Act before the 2017 elections that would have enhanced the number of elected women in Parliament. Among the changes proposed were financial incentives to political parties that got more women elected. There was also a proposal to create a national fund to support women candidates once nominated. Most innovative was a proposal to require all political parties to nominate not more than two thirds of any gender for elections to Parliament in any County. Enforced together, these provisions would have guaranteed a significant increase in elected women. These proposals were rejected summarily and we went into elections 2017 knowing we would not reach the gender threshold.

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Most of the men now speaking vociferously in support of the amendment were in the House! I doubt that a Damascus Road experience has occurred. As for the dissolution threat, most Parliamentarians believe that Parliament will not be dissolved for failure to comply. Firstly, the technical road to a dissolution is fraught with litigation roadblocks and bumps and the question may still be under litigation by elections 2022. Though the High Court has already been moved for a non-compliance declaration, I foresee numerous applications and appeals on this point to take us a lifetime. Even if the High Court finds that Parliament has failed to comply with its order, there is still the additional step of the CJ requiring the president to dissolve the House. There are no timelines for these acts and I doubt that either the CJ or the president will be in a hurry to dissolve the House considering the political and economic costs for a new election. The CJ having already nullified a presidential election will be wary of another “political” decision. It may lead to a referendum question to remove gender protections, which, unfortunately, would pass.

My view remains that the courts have room to extend Parliaments’ compliance period with specific directions on what is required. In that scenario, supporters of gender inclusivity would be better advised to focus on statutory changes that increase the number of elected women. These require a simple majority and are easier to strategise and lobby for. We must also use all possible avenues to advance the socio-economic empowerment of women especially the rural and urban poor women so that there is no appearance of elite capture of the gender agenda. We must lobby for the increase of appointments of women in public leadership. We must support the women elected to office to thrive. These will yield more fruit than a focus on constitutional amendments, which in my Kenya, will go nowhere. How I wish I was wrong.   

- The writer is an Advocate of the High Court of Kenya  

Constitutional Amendment BillChief JusticeConstitutionGender Parity