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September 22, 2017

How we got into two-thirds gender mess, how to get out

Judge John Mativo delivers a ruling on two thirds gender rule at the Milimani court on Wednesday,March 29.
PHOTO/COLLINS KWEYU
Judge John Mativo delivers a ruling on two thirds gender rule at the Milimani court on Wednesday,March 29. PHOTO/COLLINS KWEYU
In the recent case brought by the Centre for Rights Education and Awareness, Justice John Mativo said within two months, Parliament must legislate to ensure the new Parliament has no more than two-thirds men. If they don’t, anyone can ask the Chief Justice to advise the President to dissolve it. The new Parliament would then risk the same fate if it did not act (Article 261).

If this Parliament does pass necessary law, parties would have to re-do nominations in many constituencies, and the IEBC would have perhaps to redesign ballot papers, all within two months. Whether you are happy or not about Justice Mativo’s decision, the situation is a mess.

Waikwa Wanyoike last weekend in this column unpacked some of the history. But let’s go back a bit further.

DRAFTERS

Mistake Number One was to put in the Constitution provisions requiring that something is done, without having any real idea of how to do it. This goes back to the 2002 draft of the Constitution of Kenya Review Commission, with the general principle that, “One-third of the members of all elective and appointive bodies shall be women.” And —“At least one-third of the members of each House shall be women.” They gave a three-year’ time limit for the latter. Yash Ghai says he had proposed that every constituency have two MPs, one of each sex, but his colleagues rejected this.

The CKRC proposed an electoral system that would have guaranteed that at least 45 members out of a House of 300 (15 per cent) were women. In reality, it would probably have been closer to 20 per cent. It involved 210 constituencies and 90 list members, each party list beginning with a woman and then alternating the sexes.

Bomas rejected this system, replacing it with one that could have produced 25 per cent women in the National Assembly (the percentage was not clear because, while it named each district and gave each a woman member, it left it to Parliament to fix the number of ordinary constituencies). But for district assemblies it had a top-up system: enough extra women members to ensure that at least a one-third of each assembly comprised women — the one we actually have now.

The Committee of Experts, responsible for the second phase of constitution making, 2009-2010, extended the top-up system to both Houses of Parliament, and also had a woman member for each county (as they are now called).

THE PARLIAMENTARY SELECT COMMITTEE

Often, difficulties about the Constitution can be traced back to the Parliamentary Select Committee, which sat in Naivasha considering the CoE draft in 2010. Here too, it retained the county women members, but fixed the ordinary parliamentary constituencies at 290, and did away with the “top-up” women — so reducing the guaranteed share of women in the National Assembly to about 13.5 per cent. A little jiggle by the CoE with the twelve members often called “nominated” increased this a little.

In fact, with a few members elected for constituencies, and five “nominated” members being women, there are now just under 20 per cent women.

THE IEBC

Before the 2013 general election, the Interim Independent Election Commission began to get worried. Katiba Institute had meetings with the Commission, and an expert proposed a system that would have ensured at least one-third women: Every candidate would have run on a “ticket” comprising a woman and a man. After all results were in, if not enough women had seats, the women rather than the men from winning tickets would have been taken, until enough women were taken. The taking-the-women process would have begun with the tickets that had won, but the least resoundingly. It wasn’t a perfect system — independent candidates particularly presented a problem. But it would have meant no-one had to give up the chance to stand because of their gender, and women would have had a chance to stand in every constituency, learn about campaigning etc. And it would not have needed a change in the Constitution.

But the IIEC preferred another system: Grouping constituencies into four, and designating one of each four as a “women only” constituency for one election. This idea did not get past the Cabinet. Men could not bear the idea of not being able to stand for “their” constituencies. Other countries have faced similar vested interest issues that have defeated similar ideas. Waikwa savaged this response last week.

THE SUPREME COURT

The issue went to court. During the CoE process, the constitutional language about gender in legislatures had migrated from the national values to the provisions on affirmative action in the Bill of Rights and to being a “principle” to be observed by the IEBC. A majority of the Supreme Court decided that principles were not firm rules. And affirmative action was something to be achieved gradually, not immediately. So no immediate invalidity if the National Assembly had under 33 per cent women.

Chief Justice Mutunga disagreed. He would have insisted on the necessary law being passed then. If he had prevailed, Parliament would have had even less time to fix things by the March 4 2013 general election than Justice Mativo has given them now.

The Supreme Court majority accepted an argument made by the Ombudsman — who had been a member of the CoE. This hinged on Article 100: That law “promoting” representation of women and disadvantaged groups must be passed within five years. By 2015, the Court said, the law guaranteeing the gender quota must be in place.

It is not clear that this ingenious use of Article 100 is what the CoE intended. “Promote” is not the same as “guarantee”. One reading of Article 100 is that it meant that increases — even beyond the minimum one-third — in the representation of women should be encouraged by law. That meaning has now been largely lost, except for the weak use of the Political Parties Fund mentioned later.

THE ATTORNEY GENERAL

The Attorney General set up a Task Force. It considered various solutions including the man/woman ticket and quota systems discussed earlier, and others, most of which would have needed a change to the constitution — except financial incentives to parties to strive for women to win their seat, an idea first mooted by the CKRC.

THE MPs

Bills were introduced into Parliament to amend the Constitution. The MPs gave themselves an extra year, to 2016, and still could not do it. They just did not turn up in sufficient numbers to pass the Bills.

They did amend the Political Parties Act to include a provision that says 15 per cent of the Political Parties Fund must be distributed to parties based on how many “special interest group” members were elected for the parties at the preceding general election. Women are among the “special interest groups”. This may be no big deal. You may remember that, last time, only three parties got anything from the Fund. Of course, these are the parties with the most members. But it is not much of an incentive to smaller parties to change behaviour. And even with recently changed rules for allocating the Fund, no more than four parties will get money from it after the 2017 elections if the pattern of seats won is like last time. Finally, though the Fund is not small, is it enough to persuade parties to change deep-seated prejudices, given also the devious ways in which the major parties seem able to raise funds?

THE COURTS AGAIN

The case that Justice Mativo decided on March 29was started soon after the MPs failed to meet their extended deadline in August last year. The decision was quite quick by old standards. And the courts are by no means the only offenders in slow justice: Lawyers, clients and, especially, the government are often slow, sometimes as a tactic. But it is deeply disappointing to have a major decision like this thrust upon us — and the IEBC — 20 weeks before the elections.

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