Let's be faithful to our sisters to get over two-thirds gender hurdle


The two-thirds gender conundrum is back. In August 2010, Kenyans promulgated a new Constitution. 

Article 81 reads, “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.” 

This has not happened in Parliament 13 years later. All the timelines and interventions provided by the Constitution have lapsed.

There has been no sign that the powers of the day appreciate the gravity of this matter as a question of fidelity to the Constitution, and much less honour to the mothers of Kenya.

August 27, 2015 was the constitutional deadline for enactment of the two-thirds gender law. 

We failed badly. A hurriedly drafted Bill, named the Duale Bill, came before the National Assembly after the courts gave Parliament a 40-day timeline to make the law.

But the House could not raise the quorum to make this law.

Yet, the same House easily raised the two-thirds quorum to buy itself more time. It gave itself one year of grace, under Article 261(2) of the Constitution. 

That, too, lapsed. Nothing happened. Then, in March 2017, the Law Society of Kenya and civil society got court orders directing Parliament to enact the gender law within 60 days.

Barring this, the Chief Justice could be petitioned to advise the President to dissolve Parliament. CJ David Maraga advised President Uhuru Kenyatta accordingly, when the law was not made. President Uhuru simply shrugged at the advice.

Both Parliament and State House have been unfaithful to the Constitution on this matter.

Buoyed on by the confidence that nothing will happen, they have treated the two-thirds gender matter with contempt.

In effect, however, it is the Constitution that they ridicule. 

A committee appointed by the CS for Gender, Aisha Jumwa to advise the Kenya Kwanza government on how to solve the 13-year riddle has recommended the nomination of an additional 55 women MPs as the solution.

The big lesson is that like a congenital condition, the two-thirds gender principle cannot be wished away. During election campaigns, politicians exploit it by making humongous promises.

Once in office, they set them aside. Presidents Uhuru Kenyatta and William Ruto have each failed to deliver on gender-based promises. 

Uhuru’s season came and went. I will accordingly allow him peace. President Ruto, however, is the man in the arena. He promised a 50-50 gender balance in the Cabinet, as the model. It has not happened. 

Perhaps, like President Teddy Roosevelt’s man in the arena, President Ruto struggles, while we think that he only stumbles?

Yet the constitutional significance of this matter is weightier than struggling and stumbling politicians.

At the bottom is the question of whether lawmakers and all others who have taken official oaths to protect the Constitution can be trusted to do so. 

That is why Daisy Amdany, co-chair to the Two-thirds Gender Principle Taskforce, belabours the point when she muddles through tax figures to show that Kenya can afford to pay an extra 55 nominated women MPs, as the cure to the two-thirds mischief.

It is not a question of money. If it was, we would be reminded that State House told us a few years ago that Kenya loses Sh2 billion to corruption, every day. 

President Nyerere used to say, “State House is a sacrosanct place.” If they tell us, therefore, that Sh2 billion is stolen daily, we believe them.

If the annual cost for 55 more women MPs is Sh2.5 billion, as Amdany says, we only need to skip two days of theft.  Indeed, the figures of graft today are mind bogglers. The late Philip Ochieng would be offended that we call this “pilferage.”

But more apropos, the gender conundrum cannot go on forever. We ridicule both the women of Kenya and the Constitution.

Let us write Amdany’s numbers into the law and be damned, if that is what must happen to us.

But let us be faithful to our sisters and to our Law.