On the eve of Jamhuri day in December, 2012, the Supreme Court delivered an advisory opinion sought by then Attorney General Githu Muigai in which the majority opined that “legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015”. As we all know, the envisaged legislative measures to provide this principle have not materialised for the simple reason that the Government seems to have been advised by its lawyers – wrongly in my view – that the problem could only be fixed through a constitutional amendment. Let me explain.
In view of the historically low representation of women in Parliament the makers of the 2010 Constitution provided for 16 women seats in the Senate and 53 seats in the National Assembly including 47 County women representatives. It bears noting that due to the political reality that the existing 210 constituencies could not be abolished 80 new seats in the National Assembly had to be created to try and achieve regional and ethnic equity in political representation. Thus the size of the National Assembly was fixed at 349 out of which the Constitution envisages that each gender will have at least 117 members to be achieved through 53 seats allocated to women by the Constitution and Legislative measures to be taken by Parliament.
Incredibly, government lawyers equate the phrase “legislative measures” to “constitutional amendment” hence the current constitutional amendment bill by Majority Leader Adan Duale to create special seats to be filled by political parties to ensure that no more than two thirds of elected members are of the same gender. In plain terms the precise membership of Parliament will not be known in advance as will only be done after the general election having factored the gender deficit occasioned by the democratic sovereign choice of Kenyans.
The logic behind this constitutional amendment bill is not easy to grasp because the Constitution itself does not command Parliament to effect such amendment in order to realise the two thirds gender principle. All that Article 27 of the Constitution requires is that legislative measures by Parliament be taken to help in realization of this hallowed principle. It bears noting that under Article 260 of the Constitution national legislation means “an Act of Parliament, or a law made under authority conferred by an Act of Parliament”.
There are two national legislations that come to mind when dealing with the two thirds gender principle namely the Political Parties Act, 2011 and the Elections Act, 2011. Pursuant to Articles 27 and 81(b) of the Constitution there is nothing whatsoever that prevented the government lawyers from amending those two laws to realise the two thirds gender principle. As example, in the current political realities if the two laws were amended to require the parties of Uhuru Kenyatta, Raila Odinga, William Ruto, Kalonzo Musyoka and Musalia Mudavadi to nominate one third of parliamentary nominees in each county from each gender, this principle would be easily realised.
Leaving aside technical issues, there are five reasons why the constitutional amendment bill is a gross mistake that should be rejected in toto by MPs. First, the Constitution does not envisage the proposed enlargement of Parliament to satisfy the two thirds gender principle. On the contrary the Constitution requires legislative measures be undertaken to realise this principle within the 349 members of National Assembly and 67 Senate members composition of Parliament. In my view to amend the Constitution when it requires enactment of legislation is both a testament of ignorance and contempt for the Constitution.
Secondly, Article 27(6) of the Constitution requires that legislative and other measures including affirmative action programmes and policies be taken by the State to redress historical and other disadvantages suffered by individuals and groups. By some queer logic middle class women have managed to hog the opportunities for disadvantaged people created by Article 27 so that the deficit in the two thirds gender principle seems to be the only group disadvantage requiring attention. If you ask me, if the Employment Act and public service regulations were amended to entrench the two-thirds gender principle in mid-level public appointments, Kenya would improve the welfare and standing of its women considerably.
Thirdly, in country sighing under the heavy weight of Chinese debt and busy rolling back development projects it is extremely insensitive and outrageous that the State would rather prioritize creating jobs for 40 to 70 middle class women majority of whom will invariably come from the pool of spouses, girlfriends, nieces and political allies of the owners of the national political parties and their cronies. For heavens sake this is modern day feudalism!
Fourthly, the constitutional amendment is being promoted in the name of women but in reality it will tighten the grip of the pentagon of Uhuru, Ruto, Raila, Kalonzo and Musalia on Kenya’s politics because at the end of the day they will decide which of their favourite women relations and supporters will get the special seats. This is feudalism not empowerment in a modern Republic.
Finally, Article 201 of the Constitution requires that public funds should be used responsibly and prudently. State officials including MPs and our Chinese creditors are paid from the Consolidated Fund. This fund is already using over 50 per cent of ordinary government revenue and every time it increases there will be less and less funds available to cater for the needs of the overwhelming majority of Kenyans. Lest we forget, the same Constitution that prescribes the two thirds gender principle also abhors having too many street children in all our urban areas and so many Kenyans being reduced to scavengers. It would be shocking to me if President Uhuru does not withdraw this unfortunate constitutional amendment bill.
*The writer is a constitutional lawyer (firstname.lastname@example.org).