How Kenya can implement the two thirds gender rule
By Mungai Kihanya
| June 22nd 2016
NAIROBI: I am glad the two-thirds gender bill was defeated in Parliament. This will give us an opportunity to re-think the matter more broadly and hopefully come up with a better solution.
The apparent inconsistency in the Constitution was brought to the public domain by the Independent Electoral and Boundaries Commission (IEBC) in 2012.
At that time, IEBC proposed to reserve certain constituencies for women. That idea was shot down by stakeholders. Consequently, the Attorney General requested the Supreme Court to render an opinion.
In a majority ruling, the Court found that the two-thirds gender provision should be implemented gradually within five years from the date the new constitution took effect.
That opinion saved us from a constitutional crisis during the 2013 General Election, but we did nothing to resolve the matter. With the 2017 elections just round the corner, we are rushing to fix the problem.
Unfortunately, the proposed solution was bad in that it created another problem: a bloated parliament. Soon after the end of the 2013 election process, many Kenyans started complaining we had too many Members of County Assemblies (MCAs). The large number of MCAs came about as a result of the constitutional requirement that, should more than two-thirds of the membership of any County Assembly be of the same gender, then political parties should nominate additional people to tip the balance. Thus we ended up with over 774 nominated MCAs.
The rejected constitutional amendment bill was proposing a similar arrangement for parliament! Obviously, it would have created bloated houses of Parliament. This is why I am glad the bill failed.
Globally, constitutions are clear on one point: if any other law is inconsistent with the Supreme one, that law is invalid to the extent of the inconsistency.
In one article, our Constitution says that “The electoral system shall comply with the principle (that) not more than two-thirds of the members of elective public bodies shall be of the same gender” (Article 81).
Later on, it gives a clear and unambiguous description of the composition and membership of Parliament (Articles 97 and 98) but without any mention of gender ratios.
To get out of this quagmire, we can choose to interpret that the two-thirds gender limitation is a guiding principle rather than a specific requirement. Indeed, Article 81 talks about “the principle”. In that case, a parliament whose membership obeys the provisions of Articles 97 and 98 will be properly and legally constituted.
We can change the Elections Act (not the constitution) to force political parties to adhere to the two-thirds gender principle. This would be in line with the constitutional provision that “every political party shall promote the objects and principles of this Constitution” – Article 91(1)(g).
We can add a clause saying that, in a general election, political parties must ensure that no more two-thirds of their candidates for each house Parliament are of the same gender.
In other words, each political party is forced to select which electoral areas it will field men and which it will have women. This is similar to the first proposal from the IEBC, but this time, there are no constituencies reserved for any particular gender.
One political party may nominate a woman in a certain constituency while another is fielding a man in the same place.
The result would be a sudden increase in the number of female candidates, increasing their chances of getting elected. This is much better than the direct nomination that was envisaged in the defeated bill.
We can make fundamental changes in the constitution instead of the cosmetic ones proposed in the rejected bill. We start by abolishing the Senate! Next, we change the composition of the National Assembly to be two members from each county – one man and one woman.
This will make a total of 94 elected MPs. That way, the question of the two-thirds gender limit will never arise.
After these changes in parliament, we move to the County Assemblies. Here, we remove the present ward boundaries and replace them with those of the current constituencies. Then we use a membership structure similar that of Parliament – one man and one woman to be elected from each new ward.
This will cut down the number of MCAs from the current 2,526 to just 580. Let us put our heads together and build on these and other ideas instead of rushing to pick a quick fix that will create a bigger problem than the one we want to solve.
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