Two-thirds gender rule needs a referendum, says Justin Muturi

National Assembly Speaker Justin Muturi during an interview on Spice FM, September 15, 2021. [Denish Ochieng, Standard]

The fate of the two-thirds gender rule lies squarely in a referendum vote, National Assembly Speaker Justin Muturi has said.

During an interview at the Standard Group Head office, Nairobi, the Speaker said unless Kenyans vote on the matter, the gender rule in Parliament is doomed.

Muturi absolved Parliament from blame for failing to enact the gender rule as provided for in Article 27 of the Constitution.

“There is no Act of Parliament that you can pass or can implement the two-thirds gender rule… guaranteeing that would be equal to guaranteeing the result of a competition,” he said, challenging those blaming Parliament to come up with proposals on how to implement the principle in elective positions.

“What Act of Parliament will you do that will deny one the right to vie for election so that you can achieve two-thirds in Parliament?” He posed.

Muturi argued that it was impossible to compel the electorate who they would elect as their Member of Parliament to achieve the gender principle.

He said there is no single law that can help to enact the two-thirds gender rule in elective positions since whoever comes first is elected.

"I have discussed this matter with the National Gender and Equality Commission (NGEC). Even the election Act does not guarantee that. Do we Amend Articles 97 and 98 on topping up? In the 11th Parliament, we had 16 women elected in single constituencies out of the 290. In the current House, the number increased to 24 single-member constituencies," explained Muturi.

"During the Bomas draft, the women lobbied for affirmative action seats to build capacity and horn skills. The 47 county MPs should now pick single constituencies and contest. Similarly, political parties have to nominate capable women to contest. Parliament is a result of voting, the problem is at the core," he added.

The Speaker pointed out the contradictions in law that allow everyone to compete for elective seats, yet requires that no gender shall occupy more than two-thirds of elective posts, terming it discriminatory.

Article 27 stipulates: "Every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres."

"The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth."

Kenya Women Parliamentary Association members chanting outside Parliament demanding the implementation of the two-thirds gender rule, 2018. [Boniface Okendo, Standard]

"Kenyans need to discuss it robustly. If Kenyans want we do top up it should be their decision and not a decision of Parliament. The Constitution stipulates that there will be 349 MPs in the National Assembly and 67 in Senate," said Muturi.

"If Kenyans think Parliament should expand itself beyond that of 416 close to 600 which is a monumental proposal because of cost, then so be it. We should not shy away from reality. Most leaders fear expressing themselves on the matter because, on one hand, they fear backlash from women. The country must make the decision either to change the electoral system to be proportion or mixed-member," he added.

Muturi called for a review of the law through a “robust national conversation” to have the provision struck out or a solution on its implementation created.

The Speaker said it was unfair to task Parliament with expanding itself to ensure equity, and only a referendum can cure this.

Muturi faulted former Chief Justice David Maraga's advisory to President Uhuru Kenyatta to dissolve Parliament saying it was an exercise in futility.

"If even the President would have acceded and dissolve Parliament, what guarantee is there those elected would meet the threshold? The law requires an election is held 60 days after dissolution of Parliament. What is the guarantee that the next Parliament will achieve the same?" he posed.

He said this reality had informed suggestions by the late Makueni Senator Mutula Kilonzo to top up by nominating more women MPs to bridge the deficit.

He, however, said the august House had made significant strides in enhancing the place of women in leadership and challenged them to battle it out in the political ring.