AMEND CONSTITUTION

How to end the polarising two-thirds gender headache - at the ballot

Five times, the feckless National Assembly has failed to enact legislation to effect the two-thirds rule; legislation not the answer

In Summary

• In a clever move and a demonstration of political deftness, Ruto has pulled out the two-third gender rule card as his plank for opposing the constitutional review.

• Article 81 (b) of the Constitution requires that "not more than two-thirds of the members of elective bodies shall be of the same gender."

The country is celebrating the 10th anniversary of the 2010 Constitution.

The celebration has been marked by, among other initiatives, commentaries and opinion pieces by prominent leaders across the political divide, assessing the achievements, pitfalls and failures of the Constitution.

The verdicts have been varied, mostly depending on the political standpoint of the commentator. Coming at a time the BBI activities are set to resume in earnest, interest groups have taken advantage of the anniversary to woo leaders of different persuasions to their sides.

There have emerged two distinct sides at this epoch moment — those pushing for the review of the Constitution and those against.

Many of those promoting constitutional review are in the BBI brigade led by President Uhuru Kenyatta and Raila Odinga. They aver there are few but fundamental flaws that need to be fixed. They have invariably picked on the structure of the Executive and state functions to demonstrate their argument.

It is considered that the presidential system has been responsible for the cyclic electoral violence because of the winner-take-all premise of the system.

On the other hand, the anti-review team covertly led by Deputy President William Ruto considers the BBI process selfish. They consider the review to be a hidden Raila presidency agenda. This agenda is backed by Uhuru to camouflage his betrayal of the Jubilee gentlemen's pact of 2013.

Ruto is bitter with the mainstream Jubilee for reneging on the promise to support him for the presidency at the end of Uhuru’s second term. The relationship between Uhuru and Ruto has hit rock bottom.

A referendum and push therefore provides a perfect chance to settle scores preliminarily and gauge the strengths of either side ahead of the 2022 General Election.

However, in a clever move and a demonstration of political deftness, Ruto has pulled out the two-third gender rule  card as his plank for opposing the review.

 

Article 81 (b) of the Constitution requires that "not more than two-thirds of the members of elective bodies shall be of the same gender." Five times, the National Assembly has attempted to enact legislation to effect this provision without success.

Under the current circumstances, it is not feasible to expect the National Assembly as constituted to provide a solution to this stalemate. What is lost in the hullabaloo are the MPs’ individual selfish interests and the intrinsic male chauvinism pervading society. The solution to gender inequality can only be constitutional not legislative.

Our Parliament has a fixed five-year life. That means the failure of any Parliament cannot be assumed by the succeeding one or any other. That is why no Parliament has been and will never be dissolved because of inability to breathe life to this novel constitutional provision.

Each Parliament made efforts to provide the enabling legislation but lapsed before any tangible law is enacted. The gender agenda debate has also been polarised and lost objective grounds for lobbying. Every leader appears to advocate gender equity and equality during the day, but when the time comes for them to vote and demonstrate by deed, they either abscond, abstain or outrightly oppose.

Constitution Implementation Oversight Committee chairman Jeremiah Kioni has declared that this constitutional requirement is not implementable. He argues that no one should enact laws that can tamper with Kenyans’ choice at the ballot.

Clearly, the failure of Parliament to provide leadership in creating a legal environment for the enjoyment of this right is fodder for resentment. Political forces opposed to the constitutional review will most likely latch onto this vacuum to rally women to their side.

n such a scenario, Kenyans will miss another grand opportunity to rectify constitutional anomalies that have been the bane of our national stability and cohesion.

It is in this context that it has been proposed the question of representation be evaluated within the constitutional context. Currently, the laws provide that universal suffrage be applied uniformly in electing representatives to the legislative organs at the county and national levels.

There is a modest attempt to redress gender imbalance through nominations after the electoral outcome. Parties are allowed to nominate members to the National Assembly, the Senate and county assemblies based on their performance at the ballot.

The National Assembly has an additional provision for competitive election of 47 women MPs, each representing a county. But these efforts have achieved far less than the anticipated gender parity.

As the country awaits the final BBI report, it is hoped that the question of representation has been addressed to fix the gender disparity problem in electoral politics.

Kenya should abandon the First-Past-the-Post system and instead adopt the Mixed-Member-Proportional representation. This will help address the gender agenda adequately as well as entrench party democracy and discipline.

Proportional representation refers to electoral systems designed to approximate the ideal of proportionality in converting citizens' votes into legislative seats. All proportional representation systems require multimember constituencies.

The degree to which the system approaches proportionality increases with the number of representatives elected per constituency. In the most common form, list proportional representation, electors vote for lists of candidates designated by the parties. Any of several formulas allocate seats to parties, and parties select winning candidates from their lists according to predetermined rankings.

In the mixed-member proportional (MMP), about half the representatives are elected from single-member districts (SMDs) and half from party lists, but seats won in SMDs are subtracted from list allocations so they do not diminish overall proportionality.

Compared with electoral systems based on plurality or majority rule, proportional representation is conducive to multiparty legislatures and coalition governments. The MMR has been used in South Africa successfully though not on the half-half scale.

In a referendum, Kenyans should simultaneously consider the MMR model to sort out the elusive gender parity in leadership. In this proposal, the total number of electoral constituencies would be two-thirds of the total number of MPs.

At the general election, electors would be offered two votes. One vote would be for the candidate at the constituency while the other for the elector’s preferred political party. Parties will also be required to publish the list of their preferred nominated MPs in order of priority before elections.

The party lists would be half women and half men in alternating order. It is thus possible that at a constituency polling station, a voter would cast a vote for a Jubilee MP but give ODM the party vote. The constituency MPs would be declared as per the FPTP, while the nominated MPs would be determined according to party electoral vote strength.

The remaining third of Parliament's membership will be filled by MPs nominated by parties. If all the elected two-third constituency MPs are women, for example, then all parliamentary parties will be compelled to nominate only men in their  party lists.

The review should also seek to address the concerns that Kenyans are over represented comparatively. There are also complaints that taxpayers are overburdened by the cost of maintaining the legislators.

Prof Francis Aduol, a leading mathematical modelling expert, recommends that going forward, Kenya should have a national assembly of 360 members, 40 of elected from constituencies delineated on the basis of population and geographical expanse. The remaining 120 members should be nominated by the parties in accordance to their strength of national vote tally.

This approach would forever ensure that at no time will there be either gender of more than a third. Kenyans may choose to be bolder and legislate that only 180 members are elected from electoral constituencies. The other half be nominated under the MMR by parties. This would assure gender equality in Parliament and the formula would be replicated at the county assembly and senate levels.

Gender lobbyists should find this proposal plausible and worthy of consideration by political leaders from both divides.