KIBE MUNGAI: Gender bill a poisoned chalice

Kandara MP Alice Wahome arrive in Parliament in a white head band in support of the the two-thirds gender rule bill. November 20, 2018. /JACK OWUOR
Kandara MP Alice Wahome arrive in Parliament in a white head band in support of the the two-thirds gender rule bill. November 20, 2018. /JACK OWUOR

It was Deng Xiaoping, China’s de facto leader acclaimed for beginning reform in the communist state, who said “it does not matter whether the cat is black or white, as long as it catches mice”.

The way I see it, the supporters of the Constitution of Kenya (Amendment) Bill, 2018, popularly known as the Gender Bill, have calculated that irrespective of the profound concerns over the principle and method of realising the two-thirds gender principle championed by the government, they have followed Deng’s lead on prudence and practicality of facing life’s challenges.

Yet it seems to me also that unlike Deng who was motivated by a greater purpose to ensure survival of the Chinese Communist Party by adopting capitalistic means of production, there is no greater vision than short-term opportunism that informs the support for the Gender Bill.

There are three reasons why this is so. First to support the Bill is equivalent to trading off gold for copper. The Constitution, having created 53 nominated positions for women in the National Assembly and 18 in the Senate, required Parliament to enact legislation to give them a share of the elective 290 seats in the former and 47 in the latter.

Make no mistake: In Parliament it matters whether you were competitively elected or a recipient of political parties’ favour and in the Senate as a nominated senator you don’t speak for whatever county you come from.

Secondly, the Bill will be in force for only 20 years with an option for one further fixed period of 10 years. Compared to this, the legislative interventions required by the Constitution would not have a sunset clause as their main purpose would be to guarantee the perpetual existence of the two-thirds gender principle.

In other words the current generation of politically favoured elite women is guaranteed of more places at the high table in the near future but future generations of Kenyan women will be left to their own devices if the Bill gets the requisite support against the great odds facing it.

Thirdly, the central logic of the Bill is deeply flawed. According to Majority leader Aden Duale, if the Bill is passed, he expects that after 20 or at most 30 years “enormous gains will have been made with regard to gender parity in elected members of Parliament”.

The other name for this brand of reasoning is “political day dreaming 101” for two simple reasons: First, the leaders of the major political parties support the Bill precisely because in achieving the gender rule by adding nominated seats they avoid the inconvenience of allocating women a greater share of elected seats.

Reason two is that the moment the Constitution has allowed political parties leaders to achieve the gender principle through nominations, there will be no inventive to nominate relatively weaker female politicians to contest elective seats.

Accordingly, if the Bill becomes law, there is a greater likelihood that the share of elected women MPs will reduce dramatically in 2022 and the subsequent 20 or 30 years.

Supporters of the Bill cannot be oblivious of the fact that many Kenyans consider nominated MPs and MCAs as gate-crashers into a democracy party.

The propagandists for the Bill claim that in 2022 we shall only need about 20 to 30 women MPs to realise the two-thirds gender principle but 60 to 80 is a more realistic range. Cumulatively, the National Assembly could easily end up with over 100 nominated MPs. There is no prize for guessing the amount of political resentment such a scenario will generate.

To my mind such resentment is all that democracy puritans will need to push for amendment of the Constitution to get rid of the preposterous notion that a democracy in which members of both genders hold a single vote each and can equally seek elective positions can ever be deficient because in a given election the voters have decided to have greater representation by one gender over the other.

Finally, the argument that Rwanda and Uganda have more female MPs than Kenya cannot be helpful the moment you consider that for many a tyrant in a parliamentary system having a bunge with fewer ambitious representatives is an effective way of managing political competition.

Vladimir Putin would also try it in Russia if he could. Is it not instructive that in supporting the Gender Bill Deputy President William Ruto lauded women for their political loyalty? In the meantime, it should count for something that neither the USA nor Germany have nominated lawmakers. I rest my case.

The writer is a Constitutional lawyer

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